The Gazette 1994

GAZETTE

MWH

APRIL 1994

require legislation. It is

difficult however to imagine a

hypothetical situation where such a

substantive distinction could be

drawn between the respective

approaches of Blayney and Denham

JJ (presumably the other members

of the Supreme Court in agreeing

Analysis

with both judges anticipated no

such complications). It is submitted

i therefore that, despite their

I formal differences, they will in

i practice be applied concurrently.

One criticism which might be

levied at the Supreme Court's

judgment is that it rejuvenates a

separation of powers doctrine

which has long outlived its

usefulness ...

required the creation of compulsory

search powers and criminal offences

for punishing those farmers who

persisted with the retrograde practice.

Blayney J also felt that the effective

implementation of the aforesaid

objective required '. . . an adequate

time for the preparation of the

prosecutions'. The precise time limit

was a matter for the State to decide and

it had done so here through Art. 31(8)

of the impugned regulations. Where

such measures are necessitated for the

effective implementation of the

directive, they will be national in form

only and, thus, will benefit from the

Art. 29.4.5 constitutionality immunity.

Denham J undertakes a wider-ranging

analysis of the nature of EC directives

and of superior Oireachtas legislation

envisaged under Art. 15.2.1. Once the

subject-matter of a directive is within

the scope of the legislative power

conferred by the appropriate treaty, its

implementation will be legally

'necessitated' within the meaning of

the Constitution. If the directive

leaves no choice relating to issues of

principle and/or policy to the

national authorities, a minister may

implement it through regulation

adopted pursuant to s.3, even where

the regulation involves the

repeal/amendment of a prior statute

because '. . . the policy of the

directive must succeed'.

She cites with approval the well-known

test formulated by O'Higgins CJ in

City View Press v AnCo

as the means

of distinguishing those directives

which permit policy choices from those

which do not."' Thus, where a national

implementing measure would comprise

little more than filling in the details set

out in the directive:

"To require the Oireachtas to

legislate would be artificial. It

would be able solely to have a

debate as to what has already been

decided, which debate would act as

a source of information. Such a

sterile debate would take up Dail

and Senate time and act only as a

window on Community directives

for the members of the Oireachtas

and the nation. That is not the role

envisaged for the Oireachtas in the

Constitution."

While it is difficult to quibble with the

force of this analysis, it should not be

taken as a justification for ministers

and, arguably, the new Joint Committee

on Foreign Affairs, failing to publicise

fully the content and anticipated effect

of such ministers' orders.

The Supreme Court has not

abdicated its duty to interpret

autonomously the scope of either

the original Art. 29.5.3 or its new

successor, Art 29.4.5.

It has been argued that the Supreme

Court's assessment of the obligations

of membership which justify s.3(2) is

inadequate." According to this

argument the interpretation of

what is necessitated by the obligations

j of membership ought always to be

seen exclusively as a question of

national constitutional law and ought

thus in

Meagher

to have been so

determined. It is submitted that the

Supreme Court judgment does not

deny the constitutional basis of the

test but, rather, endeavours to

interpret the Constitution in the light

of the overriding Community

imperative that directives be

implemented fully and in a timely

fashion. The Supreme Court has not

abdicated its duty to interpret

autonomously the scope of either the

original Art. 29.5.3 or its new

successor, Art 29.4.5.

It is arguable that the approach of

Blayney J with its emphasis on

appropriateness and effectiveness is

somewhat more accommodating to

government ministers that that of

Denham J which emphasises

democratic principles. One might

tenably argue that in a less obvious

case than

Meagher

, where the

implementation of a directive

involves the repeal/amendment of

prior national legislation, to

implement it in a certain but for

argument's sake unanticipated

(and presumably particularly

efficacious) manner would go

beyond the principles/ policies

of the directive itself and would, thus,

One criticism which might be levied

at the Supreme Court's judgment is

that it rejuvenates a separation of

powers doctrine which has long

outlived its usefulness and that,

consequently, an opportunity to move

away from

City View Press

AnCo

was lost. Only one statutory provision

in Ireland has fallen at the hands of

the said doctrine, while in the USA

the courts have always been able to

construe impugned legislative

provisions as sufficiently precise to be

valid.

This has led many American

commentators to question the

continued relevance of the doctrine in

modern constitutional law. While

provisions like those contained in ss

1-2 of the Imposition of Duties Act,

1957 are amenable to its application,

this may not be the case for most

national legislation and Community

directives, the latter which, while

setting out policy objectives, may

still leave many matters such as the

| when, where, how, and extent of their

application to the Member States. It

might be more realistic to recognise

that in today's complex world it is

reasonable to delegate such matters

and that the focus, when the

vires

resultant statutory instruments is

impugned, should be on the

reasonableness or proportionality of

the exercise by the subordinate law-

maker of its/his/her powers and

not on a metaphysical examination of

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