125 / 432
GAZETTE
MARCH 1994
whether the national or Community
legislature has described the objective
to be achieved by the directive in
|
sufficient detail. Would it be heretical I
to propose, by analogy with Art. 190
EC, that the doctrine be dispensed
with, at least for s.3 orders, and as a
counterpart alternatively to require
ministers to give detailed reasons by
way of preamble, when adopting such
orders, for the particular regulations
that are involved?
S.5 of the European Communities
(Amendment) Act, 1993 only
j
confirms existing ministerial
orders that fall foul of the aforesaid
separation of powers principle to the
extent that confirmation is in
conformity with the Constitution.
The principle of non-retroactivity,
particularly of criminal liability, will
operate to inhibit confirmation in
many cases. The wider question
of the extent to which it is
permissible to confirm retrospectively
statutory instruments declared
ultra vires
injudicial review
proceedings will almost inevitably
have to be considered by the Supreme
Court.
References
1. High Court, 1 April 1993 reported
at [1994] 1 ILRM 1, p.5.
2. See
Gazette
Vol. 87 No 9
.
(September 1993) at p.258.
'
3. At the time of the enactment of
the 1972 Act this was contained
in Art. 29.4.3 of the Constitution
but, since the enactment of the
Eleventh Amendment of the
Constitution Act, 1992, it is
comprised in Art. 29.4.5 thereof.
4. Supreme Court, 18 November
1993 at [1994] 1 ILRM l , p. 11.
5. See Art. 189 EC (as renamed by
the treaty on European Union).
Art. 14 ECSC and Art. 161
EAEC.
6. Exposed to this doctrine, it was
argued that the s.3 power
must flounder for the other
provisions of the 1972 Act
do not lay down in sufficient
detail the principles governing
the exercise of the said power.
7. By virtue of s.2 of the European
Communities (Amendment) Act,
1993 this now includes the
European Economic Area
Agreement to the extent that its
provisions and the legislation
adopted thereunder is binding on
the State through the
Community's legal order.
8. Specific reference was made to
East Donegal
Co-Operative
Livestock Marts Ltd. v AG [1970]
IR 317
and to the manner of its
construction in
Harvey v Minister
for Social Welfare [1990] IR 232
in so far as the exercise of
delegated powers by ministers is
concerned.
9. Finlay CJ, O Flaherty and Egan JJ
concurred with both judgments.
10. [1980] IR 381.
11. D. R. Phelan, '"Necessitated" by
the Obligations of Membership?
Article 29.4.5 of the
Constitution'. (1993) 11 ILT 272.
12. Inserted by the Eleventh
Amendment of the Constitution
Act, 1992. In his perceptive
article, cited by Phelan ibid., A
Collins points out as the Court of
Justice has no jurisdiction to
interpret the provisions of either
Titles V or VI of the Treaty on
European Union, the need for the
Irish High and Supreme Courts to
develop an autonomous view of
the State's obligations thereunder
will be even more acute: see A
Collins, 'The Eleventh
Amendment: Problems and
Perspectives' (1992) 10 ILT 209.
13. See Casey,
Constitutional
Law
in Ireland
(2nd ed 1992) at
p. 185.
•
* Noel Trovers BCL, LLM(NUI), Dip
AELS(Bruges), BL(King's Inns) is a
lecturer in law and Assistant Dean,
Faculty of Law, University
College
Dublin.
C o m p e n s a t i on F u n d
P a y m e n t s - M a r c h ,
1 9 9 4
The following claim amounts were
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its meeting in March 1994.
IR£
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,
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63/65 Main Street,
Blackrock,
Co. Dublin.
Malocco & Killeen,
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Dublin 2.
Christopher
Forde,
52 O'Connell Street,
Ennis,
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"Lawcus",
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Co. Kilkenny
23,879.76
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P r i z e
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Captain's Prize will
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1994. A time sheet will operate and
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William Jolley,
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•
625.03
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101