282 / 462
GAZETTE
SEPTEMBER 1993
i mp l i c a t i on of t he r e t r o a c t i ve
a p p l i c a t i on of c r i m i n al r e s p o n s i b i l i t y.
S h o u ld t he S u p r e me C o u rt e n d o r se t he
v i ew that s.3 of t he 1972 Act is
u n c o n s t i t u t i o n al b ut limit
p r o s p e c t i v e ly t he e f f e c ts of it r u l i n g,
s.5 of t he 1 9 93 A c t will p r e s e r ve f or
t he f u t u re all t he n u m e r o us r e g u l a t i o ns
c o n c e r n ed t h us e n s u r i ng c o m p l i a n ce
w i th o u r C o mm u n i ty l aw o b l i g a t i o n s.
S h o u ld n o l i m i t a t i on b e p l a c ed o n t he
s c o pe of its r u l i ng a legal v a c u um m a y
a g a in a r i se as t he 1 9 93 A ct will h a v e
p u r p o r t ed to c o n f i rm e x i s t i ng s t a t u t o ry
o r d e rs d e c l a r ed i n v a l id
ab initio
by t he
S u p r e me Co u r t. In e i t h er c a s e, n e w
l e g i s l a t i ve p r o c e d u r es a l o ng t he lines
s u g g e s t ed b y H o g a n a n d Wh e l a n will
h a v e to b e f o u n d f o r the
i mp l e m e n t a t i on of n ew E C d i r e c t i v e s.
C l e a r ly t he o p t i mal s o l u t i on f o r t he
S t a te w o u l d b e f o r t he C o u rt to a c c e pt
t he m o r e liberal c o n c e pt of ' n e c e s s i t y'
e s p o u s ed b y M u r p h y J. T h e o m n i b us
c o n f i r m a t i on of e x i s t i ng r e g u l a t i o ns
w o u l d c o v er t he f e w w h i ch m i g ht be
u n a b le e v en to p a ss this m o r e f l e x i b le
test a nd m i n i s t e rs c o u l d, w i th t he
b e n e f it of i n f o r m ed legal a d v i c e,
e s c h ew t he f u t u re a d o p t i on of
i m p l e m e n t i ng m e a s u r es s u ch as t h o se
i n v o l v ed in
Green
v
Minister
for
Agriculture.
*Noel Travers BCL, LLM (NUI),
Dip
AELS (Bruges),
BL is a lecturer
in law
and Assistant
Dean, Faculty of Law, at
University
College
Dublin.
References
1. High Court, unreported, 1 April 1993.
2. See Hogan & Morgan, Administrative Law
in Ireland (2nd ed. 1991) @ pp 17-1 and A.
Whelan, 'Art 29.3.4 and the Meaning of
"Necessity" ' (1992) ISLRev 60. Other
eminent commentators, such as Collins &
O'Reilly, disagree. The latter argue that, as
Art. 29.4.3 was enacted precisely to
derogate from, inter alia, Art 15.2, a flexible
approach ought to be adopted towards its
interpretation. See "The Application of
Community Law in Ireland" 1973-1989
(1990) 27 CMLRev 315, (1992) Irish
Journal of European Law 38.
3. This sentence has been incorporated into a
new subsection 4 to Art. 29.4 following the
Eleventh Amendment of the Constitution
Act, 1992. The new formula also refers to
acts, etc., '...necessitated by the obligations
of membership of the European Union...'
created by the Treaty on European Union.
The problems that this may create in
practice for Ireland are discussed by A.
Collins in, 'The Eleventh Amendment -
Problems and Perspectives' (1992) 9 ILT
209.
4. The original draft of the amendment would
have authorised measures adopted by the
Irish authorities 'consequent on'
membership of the Communities. This was
attacked by opposition parties as being too
imprecise. It was perceived as capable of
protecting measures adopted by the Irish
authorities on their own initiative dealing
with economic or social matters affected by
Community membership. John Temple
Lang has stated that this revised wording
was designed only to protect from
constitutional challenge those national
measures required to transpose EC
directives into domestic law.
5. S.I. Nos. 218/88 & 171/90.
6. S.3(3) does not permit the adoption of
orders creating indictable offences. This
restriction was introduced during the debate
in the Senate where it was argued that the
ministerial power would otherwise be so
extensive that it would be almost impossible
to find, in judicial review proceedings, that
a minister had acted
ultra vires.
See M.
Robinson, 'The Irish European
Communities Act 1972' (1973) 10 CMLRev
352.
7. See the amended s.4(l)(a) & (b) of the 1972
Act.
8. Art 15.2.1 provides that, '[t]he sole and
exclusive power of making laws for the
State is hereby vested in the Oireachtas: no
other legislative authority has power to
make laws for the State'. It could not be
argued, given the nature of the Community
itself and our accession thereto, that the
exception to this principle contained in Art.
15.2.2 might be relevant.
9. See Hogan, loc. cit.
10. See [1980] IR 381 where, according to
O'Higgins CJ, delegated legislation may
amount to no more than 'a mere giving
effect to principles and policies contained in
the [parent] statute' @ p. 399.
11. [1991] IR 1 and discussed by D. Walsh in
'Legal and Constitutional Implications of
Dail Financial Resolutions' (1991) 2 ILT 41.
12. It is not altogether clear where the logic of
the
Meagher
case would stop. Suppose in
future the EC institutions, in order to avoid
enforcement difficulties such as those
created by the
Meagher
case, adopt anti-
angel dust measures by way of a regulation,
which is automatically and immediately
applicable in the national legal systems by
virtue of Art 189(2) EEC, could defending
counsel argue before the High Court that it
has the power to investigate the propriety of
such a regulatory approach? If the High
Court took the view, say on the basis of the
principle of subsidiarity due to be
incorporated into the renamed EC Treaty by
Art. G(2) of the Treaty on European Union,
that the Community legislature should have
proceeded by way of a directive but the
Court of Justice, on a reference to it
pursuant to Art. 177 EEC, disagreed, how
would the former approach determine, for
the purposes of applying the Constitution,
whether the regulation was 'necessitated'
by our obligations of membership?
13. See the forceful arguments of D. Curtin in
'Some Reflections on European Community
Law in Ireland' (1989) 11 DULJ 207 and,
more generally, the views of Professor
Casey in
Constitutional Law in Ireland
(2nd
ed 1992) @ pp. 170- 171.
14. See, inter alia.
Case 29/84 Commission
v
Germany [1985]
ECR 1661, 1663. The
transposition of directives by administrative
action, such as ministerial circular, is,
therefore, not acceptable. Thus in
Browne v
An Board Pleanala [1989]
ILRM 865,
Barron J. ruled that an environmental
directive had not been properly implemented
by a circular addressed to the planning
authorities by the Dept, of the Environment.
15. See Hogan & Morgan and Whelan, loc. cit.
Whilst the theoretical rationale behind the
suggestion of enabling deputies and
senators a more realistic opportunity of
questioning ministers (some parliamentary
time would have to be assigned to debating
the statute whereas no such time is
automatically allotted to debating statutory
instruments), the extent of the take-up
thereon in relation to more technical and
complex directives is questionable. The
usefulness of the exercise would also
depend on the amount of time that could be
allowed for debating what would
undoubtedly be a lengthy list of measures.
16. M. Robinson, writing in 1973, pointed out
that the text of the twenty-two ministerial
regulations confirmed by the European
Communities (Confirmation of Regulations)
Act, 1973 had not even been circulated to
deputies and senators at the time of its
passage through the Oireachtas. This
generated considerable criticism,
particularly in the Senate, and the current
procedure was introduced to allow the
National Parliament
a more effective role
in
supervising such regulations (emphasis
added). See (1973) 10 CMLRev 467.
17. European Communities (Milk Levy)
Regulations 1985, S.I. 416 of 1985.
18. See Reid,
The Impact of Community Law
on the Irish Constitution.
(ICEL Pub. No.
17) @ p.13.
19. For a similar analysis, see Casey loc. cit.
However, G Hogan has expressed the view
that Murphy J.'s 'broad interpretation' of
the word necessitated flies in the face of the
parliamentary history of Art. 29.4.3. See,
'The Supreme Court and the Single
European Act' (1987) XXII Ir. Jur.(n.s.) 55,
59-62.
20. [1982] IR 241, 322.
21. No. 30b of 1993 signed into law by the
President on 20 July, 1993.
22. S. 5(3) expressly declares that the section is
not to be construed as an acknowledgement
that such regulations are constitutionally
invalid.
23. Under s.5(5) the scope of the s.5( 1) is
extended to any adaptations, amendments
and revocations to such regulations effected
by subsequent s.3 orders, legislation or
ministerial instruments made under such
legislation.
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