GAZETTE
SEPTEMBER 1993
the State's attempt to equate a s.3
order with an act done or measure
adopted by the State 'necessitated' by
its obligations of niembership.
Stripped of their constitutional
sunshield, the impugned statutory
instruments burnt freely in the
constitutional glare of the separation
of powers doctrine radiating
particularly from the Supreme Court's
judgment in
City View Press
v
AnCo.
w
A parallel was drawn with
McDaid
v
Sheehy,
where an excise duty order of
j
a legislative nature made pursuant to
| the Imposition of Duties Act, 1957
| was challenged." However, that order
was subsequently confirmed, thus
respecting Art. 15.2, by s.46 of the
Finance Act, 1976. In contrast in
Meagher
, the amendment of the
original s.4 control system precluded
the possibility for such positive
legislative confirmation. Johnson J
ruled that the Constitution required the
f relevant minister to determine the
j
appropriate approach to the
transposition of each directive into
Irish law. This determination would
depend on the nature of the legal
effects of transposition. Thus, if the
amendment of existing laws is
involved, s/he may proceed only by
way of Oireachtas legislation.
12
Commentary
The cogency of this approach has been
questioned on the basis of EC law and
practicality.
13
The EC Court of Justice
has stressed that directives do not have
to be transposed by way of domestic
legislation but that transposition can
also be effected through other binding
legal instruments.
14
Given the number
of directives involved and accounting
for those of an administrative nature
not requiring legislative amendments
(which can thus be implemented by
ministerial order under the
Meagher
rationale), it may not be possible for
the Oireachtas, even sitting for longer
each year than at present, to fulfil our
Community obligation of timely
transposition. It has been suggested
that an omnibus statute could be used
to transpose simultaneously in one
instrument those directives involving
legislative amendments" but this
ignores the fiasco of the single
confirmation measure enacted under
s.4 of the original European
Communities Act, 1972."
Perhaps the most surprising aspect of
the
Meagher
judgment is its failure to
address earlier High Court authorities
in which, although s.3 was interpreted,
its constitutionality was not
questioned. In
Lawlor v Minister for
Agriculture
[1988] ILRM 400,
Murphy J., having already decided that
the regulations at issue did not infringe
Art. 40.3 and Art. 43 of the
Constitution, opined that they were
also protected by Art. 29.4.3.
17
Despite
unfortunately describing the scope of
the word 'necessitated' as covering
'acts or measures
consequent
upon
membership' (emphasis added), thus
confusing the actual with the original
constitutional wording, it is arguable
that he intended to include all
measures the adoption of which is, in
one form or another, incumbent on the
State.
18
This view finds support in his
later judgment in
Greene
v
Minister
for Agriculture [1990] ILRM 364,
where he found that a condition,
imposed by the defendant in
implementing a directive concerning
farming in disadvantaged areas, was so
far-reaching and detached from the
results to be achieved thereby that it
could not be said to be 'necessitated'
by our obligations of membership.
I
It is submitted that this judgment is
authority for the view that EC
directives by their nature leave
Member States with some degree of
flexibility at the implementation stage
and that, as this flexibility is an
inherent part of the Community law
imperative thereunder, Irish
implementing measures should
normally be protected by Art. 29.4.3.
In other words the constitutional
provision should be interpreted in the
light of the nature of EC directives
whose incorporation into Irish law it
was designed to facilitate. In order to
I give effect to the legislative intention
underlying the use of 'necessitated',
j
should the particular directive confer a
wide-ranging choice or should
ministers attempt, in the relevant
implementing measure, to misuse their
powers by including matters
extraneous to or linked only indirectly
with its subject-matter, the screen of
Art. 29.4.3 ought to be inoperative.
19
No such examination took place with
regard to the directives behind the
statutory instruments that were
challenged in the
Meagher
case.
Should the Supreme Court reject the
more accommodating approach of
Murphy J., the State is likely to engage
in a damage limitation exercise as
hundreds of statutory instruments
| adopted over many years would be at
stake. The Supreme Court may be
pressed to invoke words, such as those
of Henchy J. in
Murphy v Attorney-
General
that,
'...considerations of economic
necessity, practical convenience,
1
public policy, the equity of the
case, and suchlike matters, may
require that force and effect be
given in certain cases to
transactions carried out under the
void statute.'
20
In the circumstance raised by the
Meagher
case, one might add to this
list the need to comply with our
Community obligations. The
application of the maxim
communis
error facit jus
may be more warranted
! here than ever before.
i Postscript
Since this article was written the
Oireachtas has enacted the European
Communities (Amendment) Act,
! 1993.
21
From the point of view of the
scope of ministerial power under s.3 of
the European Communities Act, 1972,
s.5 of the 1993 Act is designed to
I dispel the confusion concerning the
validity of existing regulations created
by the High Court decision in
Meagher.
Pending the outcome of the
Supreme Court appeal and without
accepting the veracity of the High
Court decision,
22
s.5(l)-(2) operate to
I confirm, in so far as is constitutionally
possible, all such regulations made
prior to the passing of the 1993 Act.
23
The specific issue of the time limit
governing, pursuant to s.l0(4) of the
! Petty Sessions (Ireland) Act, 1851, the
institution of summary criminal
proceedings is addressed by s.5(4). In
respect of offences committed after the
passing of the 1993 Act and created
by s.3 regulations made prior to its
enactment, a two year period for the
commencement of proceedings is
furnished thus removing any
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