O'Neill v Minister for Agriculture

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [S.C. No. 269 of 1995]
• Court: Supreme Court

O.Neill v. Minister for Agriculture

Owen O'Neill

Applicant

and

The Minister for Agriculture and Food, Ireland and The Attorney General

Respondents

[S.C. No. 269 of 1995]

Supreme Court

Administrative law - Ministerial scheme for licensing - Exclusivity policy - Whether policy fettered Minister's discretion - Whether scheme ultra vires - Livestock (Artificial Insemination) Act, 1947 (No. 32) - Livestock (Artificial Insemination) Regulations, 1948 (S.I. No. 55).

Animals - Control and licensing of artificial insemination - Ministerial scheme for licensing of artificial insemination centres - Scheme granted exclusive licences to nine areas in the State - Applicant refused licence on basis that licence already existed in the area - Whether scheme ultra vires - Livestock (Artificial Insemination) Act, 1947 (No. 32) - Livestock (Artificial Insemination) Regulations, 1948 (S.I. No. 55).

The Livestock (Artificial Insemination) Act, 1947, is an act "for the control of the practice of artificial insemination of cattle, sheep, goats, swine and horses".

Section 3 (1) of the Act of 1947, provides that the first respondent may make regulations for controlling the practice of artificial insemination of animals to which the Act applies and, in particular, for prohibiting the distribution and sale of semen of animals to which the Act applies except under and in accordance with a licence.

The Livestock (Artificial Insemination) Regulations, 1948, prohibited the establishment of artificial insemination centres and the practice of artificial insemination except under and in accordance with a licence granted by the first respondent.

The first respondent had adopted a licensing scheme based on the division of the State into nine areas and the granting of only one licence in each area to an artificial insemination centre on the basis that the licensee was obliged to provide an appropriate artificial insemination service for the area and that the first respondent did not grant a licence to any other person seeking to practice artificial insemination in that area. This exclusivity scheme was carried into effect by way of administrative decisions rather than regulations made under s. 3 of the Act of 1947.

The applicant had sought from the first respondent pursuant to the Act of 1947 a licence to,inter alia, establish an artificial insemination centre to carry on the practice of the artificial insemination of cows. The first respondent refused to grant the licence to the applicant on the basis that there were licences already in existence covering the nine areas, and the issue of further licences would not be justified.

The applicant sought,inter alia, judicial review of the refusal of the first respondent to grant the licence and a declaration that the exclusivity scheme adopted by the first respondent wasultra vires the powers of the first respondent pursuant to the Livestock (Artificial Insemination) Act, 1947, and the Livestock (Artificial Insemination) Regulations, 1948. The High Court (Budd J.) found that the applicant was not entitled to the relief sought.

Held by the Supreme Court (Hamilton C.J., Keane and Murphy JJ.), in allowing the applicant's appeal, 1, (Per Keane J. and Hamilton C.J.) that, whilst the major reason for the introduction of the statutory controls over artificial insemination was the desirability of controlling disease and improving the general quality of the national herd, the statutory control was negative rather than positive and there was nothing in the Act of 1947 to suggest that the Oireachtas had intended that the first respondent should adopt such an exclusivity scheme.

Per Murphy J. and Hamilton C.J.: That, since the exclusivity scheme was so radical in qualifying limited numbers of persons and disqualifying others who may have been equally competent from engaging in the business of artificial insemination, the Oireachtas in using general words could not have contemplated such a far reaching intrusion on the rights of citizens.

Quaere per Murphy J.: Whether the Oireachtas could delegate such a far reaching power at all ?

2. That accordingly, the exclusivity scheme wasultra vires the Act of 1947.

3. Per Keane J. and Hamilton C.J.: That, even if the Oireachtas had envisaged the adoption by the first respondent of such an exclusivity scheme, it was highly improbable that they intended the scheme to be established by a series of administrative decisions (thus avoiding legislative supervision and accessibility to the public) rather than by way of regulations.

Per Murphy J. and Hamilton C.J.: That whether the Oireachtas itself would have agreed to such an exclusivity scheme might be open to doubt but it was inconceivable that the legislature would have contemplated or authorised the creation of such a scheme by the executive.

Cases mentioned in this report:-

A.G. v. Wilts United Dairies Ltd. [1921] 37 T.L.R. 884.

British Oxygen Co. v. Bd. of Trade [1971] A.C. 610.

Carrigaline Co. Ltd. v. Minister for Transport [1997] 1 I.L.R.M. 241.

Cassidy v. Minister for Industry [1978] I.R. 297.

Cityview Press v. An Chomhairle Oiliúna [1980] I.R. 381.

East Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317.

McNamee v. Buncrana U.D.C. [1983] I.R. 213; [1984] I.L.R.M. 77.

Purcell v. The Attorney General [1996] 2 I.L.R.M. 153.

R. v. Port of London Authority. Ex parte Kynoch Ltd. [1919] 1 K.B. 176.

The State (McGeough) v. Louth C.C. (1956) 107 I.L.T.R. 13.

Appeal from the High Court.

The facts have been summarised in the headnote and are fully set out in the judgment of Murphy J.,infra.

On the 7th February, 1994, the High Court (Lavan J.) granted leave to the applicant to apply by way of judicial review for,inter alia, declaratory relief in respect of the legislative and ministerial scheme for the artificial insemination of cattle.

The application was heard by the High Court (Budd J.) and by reserved judgment delivered on the 5th July, 1995, it was held that the applicant was not entitled to the relief sought.

The applicant appealed to the Supreme Court by way of notice of appeal dated the 27th July, 1995.

The appeal was heard by the Supreme Court (Hamilton C.J., Keane and Murphy JJ.) on the 16th and 17th April, 1997.

Cur. adv. vult.

Hamilton C.J. 14th May, 1997

I agree with the judgments about to be delivered by Keane and Murphy JJ.

Keane J.

The factual and legislative background is fully set out in the judgment which will be delivered by Murphy J.

Three possible issues arose for resolution in the High Court and this Court. First, as to whether the scheme adopted by the first respondent which crystallised in the arrangement by virtue of which licences were granted on an exclusive basis to nine artificial insemination stations for areas which between them comprised the entire country (and which I shall hereafter refer to as "the exclusivity scheme")wasintra vires the Livestock (Artificial Insemination Act, 1947, (hereafter"the Act of 1947"). If it was not, the claim of the applicant would have to be upheld. If it was, the second issue would arise, whether the exclusivity scheme could only be implemented by regulations made by the first respondent in exercise of the power conferred on him by s. 3 of the Act of 1947. If it could not be implemented in any other way, again the claim of the applicant would have to be upheld. If the action of the first respondent in adopting the exclusivity scheme wasintra vires the Act of 1947 and was properly carried into effect by administrative decisions rather than in the form of regulations made under the Act of 1947, the third question would arise,i.e.as to whether it was nonetheless in contravention of the obligations of the State under the law of the European Union and, in particular, Articles 86 and 90 of the Treaty of Rome.

The legislative framework provided by the Act of 1947, as was stressed more than once in the course of argument, is of great simplicity. Section 3 empowers the first respondent to make regulations for controlling the practice of artificial insemination except under and in accordance with a licence. Section 7 empowers the first respondent to issue such licences and to "attach such conditions as he thinks fit" to a licence. Yet however simple, even skeletal, the scheme of the Act may be, there is applicable to it the largecorpus of case law which has been built up both in this and the neighbouring jurisdiction as to the legal constraints which affect the exercise of such powers by a person in the position of the first respondent.

At the outset, it is necessary to bear in mind that the presumption of constitutionality to which the Act is entitled carries with it the corollary, as found by this Court inEast Donegal Co-operative Livestock Mart Ltd. v. Attorney General [1970] I.R. 317, that powers such as this must be exercised in accordance with the requirements of the Constitution, including the application, where appropriate, of the rules of natural justice. As Walsh J. put it at p. 344:-

"[The provisions of the Act] do not give [the Minister] an absolute or an unqualified or an arbitrary power to grant or refuse [licences] at his will. Therefore, he is required to consider every case upon its own merits, to hear what the applicant or the licensee (as the case may be) has to say, and to give the latter an opportunity to deal with whatever case may be thought to exist against the granting of a licence or for the refusal of a licence or for the attaching of conditions, or for the amendment or revocation of conditions which have already attached, as the case may be."

In that case, the Court was concerned with a statutory scheme designed to regulate a trade being carried on in particular premises: here we are concerned with a scheme intended to regulate a particular practice,i.e. the artificial insemination of cattle. However, the principle enunciated by Walsh J. in the passage...