Previous Page  281 / 462 Next Page
Information
Show Menu
Previous Page 281 / 462 Next Page
Page Background

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

259