O'Sullivan v The Sea Fisheries Protection Authority
| Jurisdiction | Ireland |
| Judge | Clarke J.,MacMenamin J.,Laffoy J. |
| Judgment Date | 10 June 2016 |
| Neutral Citation | [2016] IESCDET 74 |
| Court | Supreme Court |
| Date | 10 June 2016 |
[2016] IESCDET 74
THE SUPREME COURT
DETERMINATION
Clarke J.
MacMenamin J.
Laffoy J.
AND
AND
This determination relates to an application by the defendants in the underlying proceedings (‘the State’) for leave to appeal, under Art. 34.5.4 of the Constitution directly from the judgment of the High Court (O'Connor J.) delivered on the 15 January 2016. The order appealed against was made on the 2nd March 2016 and perfected on the 18th March 2016. As is clear from the terms of the Constitution and many determinations made by this Court since the enactment of the 33rd Amendment it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed either involves a matter of general public importance or that it is otherwise in the interest of justice necessary that there be an appeal to this Court. In addition because this is an application for leave to appeal directly from the High Court it is also necessary that it be established that there are ‘exceptional circumstances warranting a direct appeal’ to this Court.
The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
These proceedings relate to the European Union (Common Policy) (Points System) Regulations 2014 (‘the Regulations’). The Regulations were made under the European Communities Acts 1972 – 2012. A central feature of the claim made by the plaintiffs/respondents (‘the O'Sullivans’) was that the Regulations went beyond the principles and policies identified in EU fisheries law and that, consequently, the Regulations were ultra vires the European Communities Acts. In substance it was suggested on behalf of the O'Sullivans that certain aspects of the Regulations were not ‘necessitated’ by the relevant EU measures and that, while it would have been permissible to introduce the measures in question by primary legislation, such measures could not be introduced by secondary legislation made under the European Communities Acts.
The High Court (O'Connor J.) determined that the Regulations were ultra vires s.3 of the European Communities Act 1972 and were, as a consequence, invalid having regard to the provisions of Art. 15.2.1 of the Constitution. It should also be noted that the order of the High Court recorded that the Regulations had been revoked between the time of the delivery of the judgment of the High Court and the making of the court order. The consequences of that fact will need to be considered in the course of this determination. It is against the entirety of that decision of the High Court that the State seeks to appeal directly to this Court.
The notice of application for leave to appeal together with the response is published along with this determination. It is not, in those circumstances, necessary to set out in full detail the contents of those documents. For the purposes of this determination it is sufficient to summarise the basis upon which the applicant suggests that the constitutional threshold for leave to appeal has been met. However it is important to note that the State draws attention to a separate application for leapfrog leave currently before this Court in respect of a judgment of the High Court (O'Malley J.) in Crayden Fishing Co. Ltd. v. Minister for Marine & ors [2016] IEHC 30. That application for leave is also the subject of a determination made by this Court today. In Crayden the High Court determined that certain aspects of the procedures followed in respect of the implementation of the Regulations breach the principles of natural justice. The specific issues which arise in Crayden are not, therefore, the same as the issues which arise in this case. It is, however, important to note that there is at least a connection between the two proceedings because both involve challenges to the validity and operation of the Regulations as a result of which, for differing reasons, the Regulations are said in substance to be lawfully inoperable.
As appears from the State's notice of application, it is said that the decision of the High Court in this case relates to the validity of measures adopted to comply with the State's obligation to give effect to EU fisheries law. On that basis it is said that the decision of the High Court is not specific to the circumstances of these proceedings but rather has the potential to affect other measures sought to be imposed under the Regulations.
Insofar as the State suggests that it might also be in the interests of justice than an appeal be pursued to this Court, the issues raised under that heading in the notice of application do not provide a stand alone basis for meeting the constitutional threshold for leave to appeal but may be relevant in the context of whether it is appropriate to grant leapfrog leave.
It is noted, in that context, that...
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