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You are here: BAILII >> Databases >> High Court of Ireland Decisions >> Kennedy v. A.G. & Anor [2004] IEHC 297 (30 July 2004) URL: http://www.bailii.org/ie/cases/IEHC/2004/297.html Cite as: [2004] IEHC 297

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HC 297/04

THE HIGH COURT

[2001 No. 833 JR]

JUDICIAL REVIEW

BETWEEN

THOMAS KENNEDY

APPLICANT

AND THE ATTORNEY GENERAL AND THE MINISTER FOR THE MARINE AND NATURAL RESOURCES

RESPONDENTS

JUDGMENT of Mr. Justice Ó Caoimh delivered the 30^th of July, 2004.

By order of this Court made 10^th December, 2001 (Ó Caoimh J.), the applicant was given leave to apply by way of an application for judicial review for an injunction restraining the Attorney General from prosecuting the applicant for offences set out on Tralee Charge Sheet 119 of 2001.

2. A declaration that articles 3, sub-article (8), para. (a) and article 3, sub-article (10) of the Mackerel (Licensing) Order, 1999, made by the second named respondent (hereinafter referred to as the Minister), is ultra vires and exceeds the jurisdiction conferred by s. 223A of the Fisheries (Consolidation) Act, 1959 (as inserted by s. 9 of the Fisheries (Amendment) Act, 1978 and amended by s. 4 of the Fisheries (Amendment) Act, 1983).

3. A declaration that the temporal restriction contained in condition 8 of the applicant's licence, imposed by the Minister, is ultra vires and is not authorised by article 3(8) of the Mackerel (Licensing) Order, 1999 and is null, void and of no force or effect in law.

4. A declaration that condition 9 of the applicant's licence, imposed by the Minister, is ultra vires s. 223A of the Act of 1959 as amended aforesaid and is null and void and of no force or effect in law.

5. An order of certiorari quashing the conditions 8 and 9 of the applicant's licence and such articles, sub-articles and paragraphs of the Order of 1999 as to this Court seems appropriate.

The grounds upon which the applicant was given leave aforesaid are as follows:-

l. The second named respondent, in purported reliance upon the powers conferred on him by s. 223A of the Fisheries (Consolidation) Act, 1959 (as inserted by s. 9 of the Fisheries (Amendment) Act, 1978 and amended by s. 4 of the Fisheries (Amendment) Act, 1983) (hereinafter referred to as the "Acts") to prescribe and adopt measures of conservation of the fish stocks and rational exploitation of fisheries, introduced the Mackerel (Licensing) Order, 1999 (Statutory Instrument No. 311 of 1999), hereinafter referred to as the "Order".

2. The said Order provides for the establishment of a licensing regime for the fishing of mackerel in areas defined in the Order, for boats over a specific length and further, in article 3(8) of the Order specifies the types of conditions which can be attached to licences granted pursuant to the said Order viz:

"(a) prohibiting the landing or transhipment of mackerel other than at a specified place.

(b) requiring the keeping by the master of the licensed vessel of such records as are specified in the licence.

(c) requiring the master of the licensed vessel at all times on a request being made in that behalf to permit the boarding and inspection of the vessel and inspection of any records kept on board the vessel in relation to the vessel, whether pursuant to a requirement of the licence or otherwise, by a sea fisheries protection officer and the taking of copies of any such records by such an officer or person, and to give such officer such assistance as may be reasonable to assist in such inspection."

3. Article 3(10) of the Order provides that the master of the licensed vessel shall not contravene or cause or permit a contravention of any condition of the licence granted pursuant to the Order and s. 223A(4) (2) of the Act provides, that a person who contravenes or attempts to contravene an order under s.223 shall be guilty of an offence.

4. A mackerel fishing licence was issued to the applicant (hereinafter referred to as the licence) on or about the 20^th October 2000 by the second named respondent, its servants or agents. A number of conditions were attached to the said Licence, including the following:-

(a) Condition 8 which requires the applicant to give 4 hours notice of his intention to land or tranship mackerel at a port to a sea fisheries protection officer stationed at the relevant port and

(b) Condition 9 which states that mackerel may be landed or transhipped only at ports designated and named in the said condition, or such other ports specified to the master of the licensed vessel by a senior sea fisheries protection officer.

5. Condition 8 purportedly attached to the applicant's licence, is ultra vires, null, void and of no force or effect as it is not a condition which the second named respondent is entitled to attach to the licence being restrictive, unnecessary, impermissible and outside and far in excess of the second named respondent's power to attach conditions as inserted in article 3, sub-article (8) of the Order (set out above at paragraph 2) and the second named respondent, in exercising his alleged power to impose the said condition, has exceeded his jurisdiction and acted ultra vires, outside his power and without statutory authority. As a result of the foregoing, if condition 8 of the licence is invalid, void and of not of force or effect, no offence is committed should the said condition be breached.

6. Further, the second named respondent, in purporting to promulgate an order which prohibits the landing or transhipment of mackerel other than at a specified port, pursuant to s. 223A of the Acts and evidenced by condition 9 of the licence, has acted in a manner unauthorised by the said section, which permits the Minister only to prescribe and adopt measures of conservation of fish stocks and measures of rational exploitation of fisheries.

7. Article 3, sub-article (8), paragraph (a) of the Order, is ultra vires the scope and effect of s.223A of the Acts and is null, void and of no force or effect. Accordingly, condition 9 of the licence, attached pursuant to the supposed authority conferred by article 3, sub-article (8), paragraph (a) of the Order has been invalidly, wrongfully and unlawfully imposed and is ultra vires, null, void and of no force or effect. As a result of the foregoing, if condition 9 of the licence is invalid, void and of no force or effect, no offence is committed should the said condition be breached.

8. Alternatively, in promulgating article 3, sub-article (8), paragraph (a) of the Order and imposing condition 9 of the licence pursuant to same, the second named respondent erred in law and exceeded his powers under the said Acts and further, condition 9 of the applicant's licence, purportedly made pursuant to article 3, sub-article (8), paragraph (a) of the Order is ultra vires the powers of the second named defendant conferred by s. 223A of the said Act, in that it is a matter unrelated to conservation of fish stocks and measures of rational exploitation of fisheries and condition 9 of the licence is ultra vires, void, invalid and of no legal force or effect.

9. The applicant has been charged on indictment with contravention of conditions 8 and 9 of his licence and article 3(10) of the Mackerel (Licensing) Order, 1999, contrary to s. 223A of the Fisheries Consolidation Act, 1959, as amended by the Fisheries (Amendments) Acts 1978, 1983 and 1994 and has appeared before the Circuit Criminal Court, South Western Circuit, County of Kerry, which said case stands adjourned.

10. There is no legal basis for the charges proffered against the applicant and his right not to be tried on any criminal charge save in due course of law, guaranteed under Article 38, sub-article 1 of Bunreacht na hÉireann has been breached and, further, the applicant has been wronged by the first and/or second named respondents who have failed to respect, and, as far as practicable, to defend and vindicate the rights of the respondent and to protect from unjust attack and vindicate the good name, and property rights of the applicant, particularly in light of the penalties to which the applicant will be subject, should the prosecution of these alleged offences not be halted or prohibited by this Honourable Court.

The application herein is grounded upon an affidavit of the applicant who describes himself as a fisherman and the holder of a licence granted pursuant to article 3 of the Order of 1999, made pursuant to s. 223A of the Fisheries (Consolidation) Act, 1959, in relation to the licensed vessel the MFV "Fiona K II". The applicant states that he is regularly engaged in pair fishing with the licensed vessel the MFV "Star Immaculate II", the master of which, for purposes of this application herein, is Hugh Flannery of Kilquane, Ballydavid, Dingle in the County of Kerry. The applicant refers to two conditions imposed on his licence, being conditions 8 and 9, which require him to give four hours notice of his intention to land or tranship mackerel at a port to a sea fisheries protection officer stationed at the relevant port and which indicate that mackerel may be landed or transhipped only at ports designated and named in the said condition, or such other ports specified to him, the master of the licensed vessel, by a senior sea fisheries protection officer, respectively.

The applicant has indicated that on 24^th October, 2001, he was arraigned on foot of a charge sheet no. 119 of 2001 of Tralee Garda Station on two charges relating to alleged breaches of conditions of his licence, to which he entered pleas of not guilty. He indicates that Mr. Hugh Flannery was arraigned on identical charges on foot of charge sheet 118 of 2001 and that the trial commenced on Thursday 25^th October, 2001. He says that the trial judge, Judge Desmond Hogan, refused to accede to an application made by counsel for a direction to acquit Hugh Flannery on the grounds that there was insufficient evidence upon which a reasonable jury, properly charged, could find him guilty. The applicant says further that the judge declined to hear legal argument from defence counsel concerning the validity of the Order of 1999 and the conditions imposed thereunder upon counsel for the prosecution remarking that such a submission was inappropriate and was a matter for judicial review. He points out that the trial of Hugh Flannery concluded on 26^th October, 2001, he having been acquitted by jury. He says further that following legal submissions in his case by counsel on Tuesday, 30^th October, 2001, in relation to the jury selection to hear his case, the case was adjourned and the jury discharged and he believed it likely that his case would be listed again before the Circuit Criminal Court in sessions beginning on 5^th March, 2001 or, possibly, before that date, if a judge is available to hear criminal matters in the week commencing 22^nd January, 2001. The applicant indicates legal advice that he has obtained relating to the validity of the conditions imposed in his licence at conditions 8 and 9 to the effect that the conditions in question are invalid as being made ultra vires the relevant provisions of the Fisheries Consolidation Act and the provisions of the Order of 1999. The applicant further states that his trial was first listed for hearing in the Circuit Court in the Michaelmas Term, 2001, and that he has brought his application in these proceedings promptly.

The impugned conditions in the applicant's licence read as follows:-

"8. Authorisation and advance notice of landings (1) The master of the licensed vessel shall give four hours notice of his intention to land or tranship mackerel at a port to a sea fisheries protection officer stationed at the relevant port. (2) The notice shall include details of quantities in live weight of mackerel caught in each sub-area and division of the specified area. (3) The licensed vessel shall not land or tranship mackerel at the relevant port unless the sea fisheries protection officer upon receipt of notice approves the landing or transhipment of mackerel. (4) Where the landing or transhipment of mackerel is expected to take place between 00.01 hrs and 08.00 hrs the notice shall be given before 24.00 hrs on the day preceding the landing or transhipment.

9 Authorised ports of landing/transhipment. Mackerel may be landed or transhipped only at the following ports or landing places:

Killybegs, Rossaveel, Castletownbere, Rathmullen, Burtonport, or Cloch Mor (Achill) or such other ports specified to the master of the licensed vessel by a senior sea fisheries protection officer."

A statement of opposition has been filed on behalf of the respondents in which the grounds advanced amount in essence to a traverse of the applicant's statement grounding his application to this court. It is further asserted that article 3(8)(a) of the Order of 1999 was made by the Minister within the scope of and the power and authority conferred by s. 223A of the Fisheries (Consolidation) Act, 1959, as amended.

An affidavit has been sworn by Mr. James Lavelle who describes himself as a Assistant Principal Officer in the Department of Marine and Natural Resources in Dublin in which he states, inter alia, as follows:-

1. Article 2(1) of Council Regulation (EC) No. 3760/92 of 20^th December, 1992, establishing a community system for fisheries and aquaculture, provides that, as concerns exploitation activities, the general objectives of the common fisheries policy are to protect and conserve available and accessible living marine aquatic resources and to provide for rational and responsible exploitation on a sustainable basis, in appropriate economic and social conditions for the sector, taking account of its implications for the marine eco-system, and in particular taking account of the needs of both producers and consumers. To that end, the regulation establishes a community system for the management of exploitation activities to enable a balance to be achieved, on a permanent basis, between resources and exploitation in the various fishing areas. The purpose of the regulation is described by article 2(2) as establishing a framework for the conservation and protection of resources. To that end, and in order to ensure sustainable exploitation activities, the regulation establishes a framework for the regulation of access, management and monitoring of exploitation activities, as well as the requisite means and procedures.

2. Under the regime established by this regulation and its predecessor, Council Regulation (EC) No. 170/83 the Council of the European Union (as it is now known) has, on an annual basis, set a total allowable catch by community vessels for various species of fish. This total allowable catch is established by reference to a variety of biological data, the conservation of the stock being a critical factor. Since 1983/4, a total allowable catch allocated between Member States has been established for mackerel owing to the necessity to protect stocks, which were coming under pressure from over-exploitation.

3. Out of the total allowable catch for the entire Community, Ireland receives a national quota. In 2001, Ireland was allocated a total quota of 72,020 tones in respect of mackerel. Most of this is fished by 23 vessels in the dedicated pelagic segment of the Irish fishing fleet. These vessels have refrigerated salt water facilities for the storage of catches of pelagic fish. They fish for pelagic species of this type and operate principally out of Killybegs, Co. Donegal. 7,000t out of the quota of 72,020t was tentatively allocated in 2001 to vessels in what is described as the polyvalent segment. This segment consists of vessels that fish for all species of fish at different times of the year. Unlike the pelagic vessels referred to, these vessels would have dry holds for storage, which limits the quantity of fish that they can catch and store. For the year 2002, of the 7,000t of the Irish mackerel quota allocated to the polyvalent segment, 1,500t was reserved to vessels of under 65 feet in length. The applicant's vessel, the Fiona-K II, is in the polyvalent segment. Since this vessel is greater than 65 ft in length, when it is engaged in fishing for mackerel it is in effect fishing against a quota of 5,500t. This quota is also available to be fished against by other duly licensed, polyvalent vessels in this size category, of which there are approximately 100.

4. The fishing effort available to catch mackerel against the Irish quota (i.e. that available to Irish registered fishing vessels) greatly exceeds the quota available to the industry. He gives as an example the fact that in the year 2000, the Fiona K-II is recorded as having landed 250 tones of mackerel. In 2001, she is recorded as having landed 828 tones. On this basis, he says, aside from the legal obligations to monitor and report on catches imposed upon the State under Community Law, the need for the close monitoring of catches of this species is self evident if the stock is not to be irredeemably damaged, or even fished out entirely.

5. Article 1(1) of Council Regulation (EC) No. 2847/93 of 12^th October, 1993, establishing a control system applicable to the common fisheries policy, as amended by Council Regulation (EC) No. 2846/98 of 17^th December, 1998, establishes a community system to ensure compliance with the rules of the common fisheries policy. This system is to include provisions for the technical monitoring of, inter alia, conservation and resource management measures. To that end, each Member State is to adopt, in accordance with Community rules, appropriate measures to ensure the effectiveness of the system. It must place sufficient means at the disposal of its competent authorities to enable them to perform the tasks of inspection and control laid down in that regulation. The system is to apply to all fishing and associated activities carried out within the territory and within the maritime waters subject to the sovereignty or jurisdiction of the Member States and to the activities of community fishing vessels operating outside community waters.

6. Article 2(1) of Council Regulation (EC) No. 2847/93, as amended by article 1 of 2846/98, provides that, in order to ensure compliance with all the rules in force concerning conservation and control measures, each Member State shall, within its territory and within maritime waters subject to its sovereignty or jurisdiction, monitor fishing activity and related activities. This includes inspecting fishing vessels and investigating all activities, including landing, selling, transporting and storing fish and recording landings and sales. Article 4(1) of Council Regulation (EC) No. 2847/93, as amended by article 1 of 2846/98, goes on to provide that the inspection and monitoring referred to in article 2 is to be carried out by each Member State on its own account by means of a system of inspection of its own choice.

7. On 6^th October, 1999, the second named respondent made the Mackerel (Licensing) Order, 1999. That Order was made under s. 223A of the Fisheries (Consolidation) Act 1959, as inserted by s. 9 of the Fisheries (Amendment) Act, 1978, as amended by s.4 of the Fisheries (Amendment) Act, 1983. The effect of this provision is to continue in force the licensing regime for the mackerel fishery established in October, 1984 when, as is alluded to earlier in this affidavit, a total allowable catch was introduced for the mackerel fishery in Community waters. The Mackerel (Licensing) Order, 1999, expressly prohibits all persons from fishing for mackerel in Community waters from an Irish registered seafishing boat greater than 55 foot in length, other than pursuant to a mackerel licence granted thereunder. Landing or transhipping from, or retaining on board, an Irish registered sea-fishing boat greater than 55 foot in length mackerel taken in Community waters is also prohibited. Prohibitions also apply to the owner, charterer, hirer or the master of an Irish registered sea-fishing boat greater than 55 foot in length from causing or permitting the boat or any person on board to fish for mackerel in Community waters, or the landing or transhipment from, or retention on board, the boat, of mackerel taken in Community waters where no licence has been issued by the second named respondent.

8. Section 223A of the Fisheries (Consolidation) Act, 1959, expressly provides that orders made thereunder may, inter alia, include such incidental, supplementary and consequential provisions, as the second named respondent considers appropriate. Included amongst these provisions are articles 3(8), (9), and (10), which are complained of in these proceedings.

With regard to the conditions imposed on the applicant in his licence, Mr. Lavelle states as follows:-

"With regard to the first of these, condition 8, this requires the applicant to give four hours notice of his intention to land or tranship mackerel at a port to a sea fisheries protection officer. He states that, since the mid-1990s, the Minister and his predecessors in office have consistently applied a policy of having all mackerel landings inspected by sea fisheries protection officers, unless specifically agreed otherwise in advance by the sea fisheries inspectorate. He states that the purpose of giving four hours notice in advance of landing or transhipment at a port is to ensure that these inspections can be carried out. Once such notice has been given, the standard procedure is for the sea fisheries protection officer to be waiting at the quayside when the vessel docks, at which stage he can check the quantity of mackerel on board. He states further that when the mackerel fishery is most active between October and May it operates around the clock. The shoaling characteristic of the mackerel species makes it possible for comparatively large catches to be made over a relatively short period of time and he says that, in practice, no meaningful system of control could be exercised over the activities of the mackerel fishery without a system of advance notice of landing/transhipment being required of licencees."

He further states that the policy of 100% inspection has been pursued in order to ensure full compliance with the relevant Community rules governing this area. He states that the rules are in turn designed to protect and conserve available and accessible living marine aquatic resources, and to facilitate their rational and responsible exploitation on a sustainable basis. He further states that the system treats all persons engaged in the mackerel fishery on an equal basis.

Mr. Lavelle indicates that under Community law, a similar provision applies to all Irish registered fishing vessels wishing to land fish at locations in other member states. He indicates that article 7(l) of Council Regulation (EC) No. 2847/93, as amended by article 1(7) of Council Regulation 2846/ 98 provides that the master of a community fishing vessel who wishes to utilise landing locations in a member state, other than the flag member state, must inform the competent authorities in that member state at least four hours in advance of the landing location, estimated time of arrival and the quantities of each species to be landed. He points out that failure to do so may be the subject of appropriate sanctions by the competent authorities.

Mr. Lavelle indicates that condition 9 of the applicant's licence requires that mackerel may be landed or transhipped at one of six named ports or such other ports specified to the master of the licensed vessel by a senior sea fisheries protection officer. He says that as concerns this provision, the observations made pertain to condition 8 apply with equal force. He states that no meaningful system of control could be exercised over the activities of the mackerel fishery, without some limitation upon the number of locations where mackerel could be landed/transhipped. Within the scope of the resources available to the Minister, it would not be logistically possible to monitor all potential landing points around the coastline, which would run into the hundreds. He points out that the ports listed in condition 9 were selected after consultation with representatives of the mackerel fishery and was largely self-selected. He points out that the bulk of the catches of mackerel are in fact landed/transhipped at the ports of Killybegs, Rossaveal, Rathmullen and Castletownbere. He states that thus no question arises of the Minister having imposed these landing places upon the industry. He points out that the list of ports is extended to include others on an ad hoc basis as and when required.

With regard to the applicant having obtained leave to seek a declaration that article 3(10) of the Order of 1999 is ultra vires s. 223A of the Fisheries (Consolidation) Act, 1959, as amended. Mr. Lavelle states that this provides that the master of a licensed vessel shall not contravene any condition of the licence relating thereto, or cause or permit such a contravention. He states that while the grounds for this particular challenge appear to be somewhat obscure, for the avoidance of doubt he contends that it is a well established feature of maritime law that the master of a vessel is the person in a position to effectively exercise responsibility and control of all activities in relation thereto. He refers to article 6(1) of Council Regulation (EC) No. 2847/93, which requires the masters of Community fishing vessels fishing for a stock, or group of stocks, to keep a logbook of their operations, indicating the quantities of each species caught and kept on board, the date and location of such catches and the type of gear used.

By order of this Court made the 30^th day of July, the applicant was given liberty to file an amended statement of grounds in which the following additional reliefs are sought:-

1. A declaration that the Mackerel (Licensing) Order, 1999, is ultra vires the powers of the respondents herein pursuant to s. 223A of the Fisheries (Consolidation) Act, 1959 (as inserted by s. 9 of the Fisheries (Amendment) Act, 1978 and amended by s. 4 of the Fisheries (Amendment) Act, 1983) or alternatively, a declaration that the said section is invalid having regard to Article 15 of Bunreacht na hÉireann. The amended statement sets out two fresh grounds pertaining to this relief as follows, 11A and 11B:-

11A. That the respondents, in purporting to implement Council Regulation (EEC) No. 2847/93 of 12^th October, 1993, as amended by Council Regulation (EC) No. 2846/98 of 17^th December, 1998, which said regulations establish and ensure compliance with a control system applicable to the common fisheries policy, by making the Mackerel (Licensing) Order, 1999, purportedly pursuant to s. 223A of the Fisheries (Consolidation) Act, 1959, violated Article 15.2.1 of Bunreacht na hÉireann, which provides that the sole and exclusive power of making laws for the State is vested in the Oireachtas: no other legislative authority having power to make laws in the State.

11B. That the respondents have acted ultra vires in purporting to implement Council Regulation (EC) No. 2847/93 of 12^th October, 1993, as amended by Council Regulation (EC) No. 2846/98 of 17^th December, 1998, by purporting to promulgate the Mackerel (Licensing) Order, 1999, allegedly pursuant to s. 223A of the Fisheries (Consolidation) Act, 1959.

An amended statement of opposition has been filed in which the following two additional grounds are set forth:-

13. In making the Mackerel (Licensing) Order, 1999, the second named respondent has not violated Article 15.2.1 of the Constitution of Ireland.

14. By implementing Council Regulation (EC) No. 2847/93 of 12^th October, 1993, as amended by, inter alia, promulgating the Mackerel (Licensing) Order, 1999, the second named respondent acted intra vires.

SUBMISSIONS

Mr. Brendan Grehan S.C. on behalf of the applicant refers in particular to the judgment of the Supreme Court in the case of Vincent Browne v. The Attorney General, The Minister for Marine and Natural Resources, Ireland and Judge James O'Connor (Unreported, Supreme Court, 16^th July, 2003) in which the Supreme Court held that the Sea Fisheries (Driftnets) Order, 1998, was ultra vires the power of the Minister. In that particular case, the Supreme Court applied the law laid down in Cityview Press Limited v. An Chomhairle Oiliúna [1980] I.R. 381, in which it was indicated that the secondary legislation will trespass on the executive law making role of the Oireachtas unless it does no more than give effect to principles and polices law down in an Act of the Oireachtas and indicated that this principle is not applicable to regulations intended to give effect, by virtue of s. 3 of the European Communities Act, 1972, to EC measures. It was indicated that there is one crucial qualification to this general statement of the law, namely, that any such regulation cannot create an indictable offence. In this regard, counsel refers to a portion of the judgment of Keane C.J. and further to the opening paragraph of the judgment of Denham J., where she states:-

"The issue in this case is whether the Minister for Marine and Natural Resources… has the power to create the indictable offence purportedly made in the Sea Fisheries (Driftnets) Order, 1998… or whether the Minister acted in excess of his power. I am satisfied that the Minister has no power under s. 223A of the Fisheries (Consolidation) Act, 1959, as amended, to create the purported indictable offence."

On this basis, it is submitted on behalf of the applicant, that the Supreme Court decision in the Browne case decided that the Minister, in attempting to create an indictable offence by way of Ministerial Order or Statutory Instrument, in this case the Mackerel (Licensing) Order, 1999 pursuant to s. 223A, acted ultra vires and did not have power pursuant to that section to create an indictable offence. Counsel submits that this decision is binding upon this Court in the circumstances of this case for the reasons following:-

(i) The Order creating the offence is also purported to have been made pursuant to s. 223A;

(ii) The Order also purports to enforce measures introduced as a result of the development of the common fisheries policy of the European Union (formerly European Economic Community and European Community) and to implement Council Regulations promulgated in respect of same;

(iii) The Order creates a criminal offence to be tried on indictment;

(iv) The Minister has chosen to promulgate the Order, not pursuant to the European Communities Act, 1972, but pursuant to s. 223A, which method of creation of an indictable criminal offence, by reason of the Browne decision, now stands impugned and,

(v) The finding that in creating an indictable offence by way of Statutory Instrument, or, as in this case the Order, the Minister has clearly and unambiguously attempted to trespass upon a power expressly reserved to the Oireachtas.

On the basis of these submissions, counsel submits that the decision in the Browne case disposes of the issues before this Court. Without prejudice to the foregoing submissions, it is submitted as follows:-

A. The Mackerel (Licensing) Order, 1999 (hereinafter referred to as "the Order") is purported to have been made pursuant to s. 223A of the Fisheries (Consolidation) Act, 1959 (as inserted by s. 9 of the Fisheries (Amendment) Act, 1978 and as amended by s. 4 of the Fisheries (Amendment) Act, 1983).

B. Sub-section 1 of s. 223A provides that:-

"The Minister may, as he shall think proper, by order prescribe and adopt either or both of the following measures, namely, measures of conservation of fish stocks and measures of rational exploitation of fisheries."

C. Article 3, para. (1) of the Order purports to empower the Minister, at his discretion, to issue a mackerel licence and at para. (8) of article 3, states the types, or categories of conditions which the Minister can attach to a licence granted under paragraph (1). The Order continues by stating at para. (10) of article 3 that:-

"The master of a licensed vessel shall not contravene any condition of the licence relating to the vessel or permit such a contravention."

D. Article 3(8) which prescribes the types of conditions which can be specified in a mackerel licence, makes no reference to any purported power of the Minister to require a licence holder to notify any person of the licence holder's arrival and gives no power to the Minister to require a period of time to elapse before the licence holder may arrive in port.

E. Similarly, article 3(8) gives no power to the Minister to restrict or limit the landing of mackerel to any particular location or port. Further, s. 223A itself, being the section empowering the Minister to prescribe and adopt either measures of conservation of fish stocks or measures of rational exploitation of fisheries, grants no power to the Minister to establish or enforce a licensing regime for the fishing of mackerel or, more importantly, to create a criminal offence which can be prosecuted on indictment.

On this basis, it is submitted, that in exercising the powers of licensing and the creation of an indictable offence, that the Minister acted ultra vires the powers conferred upon him by section 223A.

Counsel submits that if the conditions in question were ultra vires the power of the Minister, then the same were void and of no force or effect and any alleged breach of same could not form the basis for a criminal prosecution. Counsel submits that the situation which now exists on foot of this decision provides that the action of the Minister in attempting to create a criminal offence for a breach of regulations made under s. 223A is an exercise of power which is null, void and of no force or effect.

The policies and principles under the Fisheries (Consolidation) Act, 1959 are no longer anything but community policy with regard to the regulation of fish stocks.

Having referred to the affidavit of Mr. Lavelle, counsel submits that s. 223A can implement European Community Law, but not create an indictable offence. Counsel submits that s. 224B raises the query whether it is broad enough to justify the subject conditions imposed on the licence. With regard to s. 224B, counsel submits that this is without prejudice to the European Communities Act, 1972, and relates to the exclusive fisheries area of the State. Counsel submits that the provisions of s.223A relate to principles and policies applicable to the conservation of fishery resources within the exclusive fishing limits of the State. Counsel refers to the judgment of Keane C.J. in the Browne case and, in particular, the conclusion at p. 31 of the judgment where he stated, inter alia, as follows:-

"As is clear from the judgment of the Court of Justice in Commission of the European Communities v. United Kingdom of Great Britain and Northern Ireland (Case 804/79), since 1^st January 1979, the power to adopt, as part of the common fisheries policy, measures relating to the conservation of the resources of the sea has been vested exclusively in the communities."

The Chief Justice continued as follows at p. 32 of the judgment:-

"I am satisfied that it follows inevitably that the 1998 Order was not intended to give effect to principles and policies set out by the Oireachtas in parent legalisation. It is intended simply to give effect to the principles and policies adopted by the communities in Council Regulation 1998, as, indeed, the terms of the order itself make it unambiguously clear: the Minister while purportedly invoking powers conferred on him by s. 223A of the 1998 Act says in express terms that that this is being done 'for the purpose of giving effect to Council regulation (EC) No. 1239/98'."

The Chief Justice continued:-

"As I have already indicated there is not the slightest doubt as to the power of the Minister to give effect by statutory instrument to the principles and policies contained in that measure, even though they have not been embodied in any Act of the Oireachtas: that is the clear object of s. 3 of the 1972 Act. What on Minister can do, in availing of the powers conferred by that section, is to provide for the creation of an indictable offence: that power was expressly reserved to the Oireachtas by sub-section (3). There is no indication whatever in the language of s. 223A that it was envisaged by the Oireachtas that the Minister could give effect to principles and policies which had never been considered or adopted by the Oireachtas by means of a statutory instrument under that section which effectively circumvented the prohibition on the creation of indictable offences in s. 3(3) of the 1972 Act."

Counsel further refers to the judgment of Denham J. in the case where at p. 19 of her judgment she stated, inter alia, as follows:-

"Since January 1^st, 1979 the power to adopt measures relating to conservation of the resources of the sea belongs to the community. Member States no longer exercise national power in relation to conservation measures in their jurisdictional waters. The adoption of conservation measures is a matter of community law. S.223A (1) of the Fisheries Acts expressly relates to conservation measures. As the conservation measures since 1979 are those of the common fisheries policy the section must be construed accordingly."

Denham J. stated, inter alia, at p. 25 of her judgment as follows:-

"11. Opinion: Role of Fishing (Consolidation) Acts 1959 as amended

In 1959 when the Fisheries (Consolidation) Act, 1959, was passed by the Oireachtas, Ireland was not a member of the European Community. In the 1959 Act, there was a consolidation of Acts relating to fishing, including sea fishing. Principles and policies as to conservation and rational fishing of fish stocks in Irish waters and on the High Seas were matters addressed in this Act and in its later amendments.

On Ireland joining the European Community and then on the development of the Common Fishery Policy the making of policies on fishing, including conservation, moved to the Community Institutions. Such principles and policies were no longer determined by the Irish Government or Parliament.

However, Irish legislation continued to address the issues in Fishery Amendment Acts and orders, conservation and driftnets being matters dealt with in more than one order. The principles and policies of international agreements were regulated in Community law and then came to be implemented in Ireland.

The Irish Fisheries Acts are a complex scheme of legislation. The legislation continues while the principles and policies of sea fishing are made by the European Community. Where the community makes the Common Fisheries Policy there is no role for the Oireachtas in making the principles and policies, unless it is so given by the common policy. The Oireachtas is in the same position as described in Meagher v. Minister for Agriculture [1994] 1 I.R. 329 where I stated at page 367:-

'In the directives herein the policies and principles have been determined. Thus there is no role of determining policies or principles for the Oireachtas. While the directive must be implemented there is no policy or principle which can be altered by the Oireachtas, it is already binding as to the result to be achieved.

That being the case the role of the Oireachtas in such a situation would be sterile. 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 Dáil and Seanad time and act only as a window on the Community directives for the members of the Oireachtas and the Nation. That is not a role envisaged for the Oireachtas in the Constitution.'"

Denham J. continued as follows:-

"The principles and policies as to sea fisheries are made now in the Community, in the Common Fisheries Policy. Where the legislature legislates for matters in such policy, both expressly and by implication, the legislature is implementing the Common Fisheries Policy. The Minister is in somewhat the same position as the Minister for Agriculture who implements the Common Agricultural Policy. Here too the policy making is in the Community. There is no policy decision making in Ireland after the principles and policies of the Common Fisheries Policy have been decided in the Community, unless returned to the Member States."

Later at p. 27 of her judgment Denham J. stated as follows:-

"The principle and policies as to conservation of fish stocks and measures of rational exploitation of fisheries may be found in the Common Fisheries Policy, which may be stated in the Community Regulations. It is then a matter of implementing these policies in the Member States.

12. Offence/Penalty

The offence in issue is created in Community law which gives Member States some choice as to the penalty. The penalty created in Ireland should meet the requirements of the Community Regulations. However, the choice while remaining within the principles and policies of the Community law is required to be implemented in Ireland. In enabling that choice the Minister is required to comply with Irish public law, which includes the European Communities Act, 1972 s. 3 and the Constitution. I am satisfied that the Minister did not comply with Irish law.

13. Conclusion

For the reasons stated in this judgment I am satisfied that it was not open to the Minister to use the mechanism of s. 223A of the Fisheries (Consolidation) Act, 1959 (inserted by s. 9 of the Fisheries (Amendment) Act, 1978, amended by s. 4 of the Fisheries (Amendment) Act, 1983) to create an indictable offence by means of statutory instrument as a method of giving effect to Council Regulation (E.C.) No. 894/97 of 29 April 1997 as amended by Council Regulation (E.C.) No. 1239/98 of 8 June 1998."

In the concluding paragraph of her judgment, Denham J. stated:-

"Absent clear words from the Oireachtas in s. 223A of the Fisheries (Consolidation) Act, 1959, as amended, giving such power to the Minister I am satisfied that the Minister acted ultra vires in creating an indictable offence in purported exercise of his powers under that section. Of course it is open to the Oireachtas to legislate for exceptions or amendments to its policy as set out in s. 3 (3) European Communities Act, 1972, as amended."

On behalf of the respondents it is submitted by Mr. Anthony Collins S.C. that the instant case is not governed by the decision of the Supreme Court in the Browne case.

Counsel refers to the proceedings in the instant case and the breach of conditions 8 and 9 in the applicant's mackerel licence and article 3 (10) of the impugned Order. Counsel submits that article 3 (10) of the Order provides that the master of a licensed vessel shall not contravene, cause or permit a contravention of any condition of the licence. By s. 2 of the Fisheries (Amendment) Act, 1978, a person guilty of contravening an order made under s. 223A is liable on conviction on indictment to a fine not exceeding £20,000.00 and to forfeiture, as the statutory consequence of the conviction, of any fish and any fishing gear. Counsel refers to the provisions of s. 223A of the Act of 1959, as amended. It is submitted, that this enables the Minister to grant a person who satisfies the conditions in article 3 (1) a mackerel licence authorising, subject to the provisions of article 3, fishing for mackerel from a boat in a specified area or part thereof as described in the licence and the landing or transhipment of mackerel taken in that area during the period mentioned in the licence. Counsel submits that article 5 prohibits fishing for mackerel from Irish sea fishing boats of more than 55 foot in length in the specified areas, landing or transhipping from, or retaining on board that vessel, mackerel taken on board that boat in the specified area. Counsel refers to article 3 (5), which permits the Minister to restrict the quantity of mackerel taken on board, landed, transhipped or retained on board for such period as he decides. Counsel refers to the fact that notice of these restrictions is to be made in writing to the licence holder or master of the licensed vessels by a Sea Fisheries Protection Officer and is deemed to be a condition of the licence upon such notification. Counsel refers to article 3 (8) of the Order, which provides that the Minister may attach to, or specify, in the mackerel licence conditions prohibiting the landing or transhipment of mackerel other than at a specified place, requiring the master of the licensed vessel to keep records specified in the licence and when, finally, to permit its boarding in the inspection by a Sea Fisheries Protection Officer.

Counsel refers to article 3 (9) of the Order, which states that the Minister may, at any time, revoke or vary a term or condition in the mackerel licence or attach a new term or condition thereto.

Counsel refers to article 1(1) of Council Regulation (EC) No. 2847/93 of 12^th October, 1993, establishing a control system applicable to a common fisheries policy, as amended by Council Regulation (EC) No. 2846/98 of 17^th December, 1998, establishing a community system to ensure compliance with the rules of the Common Fisheries Policy. Counsel submits that the former regulation draws a clear distinction between fishing policy, which is exclusively a matter for the community legislature, and fishery management, which is a matter for which the Member States are responsible. Counsel submits that this distinction is reflected in the recitals to this regulation. The fifth recital states that control is first and foremost the responsibility of the Member States. Counsel refers to the eighth recital, which observes that policy on the management of fishery resources, which is based upon total allowable catches and quotas and technical measures, is to be supplemented by management of the fishing effort, which involves monitoring fishing activities and capacities. The thirty-fifth recital clearly delineates the respective responsibilities of the Community and its Member States, providing that this regulation (2847/93) does not affect national provisions on monitoring, which, while coming within its scope, go beyond its minimum provisions, provided however that such national provisions are in conformity with Community law. Counsel submits that this position is supported by the case law of the Court of Justice of the European Communities, which holds that member states do not jeopardise the objectives or the proper functioning of the Common Fisheries Policy by adopting measures involving a limitation of fishing activity with the view to conserving the resources of the sea, provided that those provisions are not contrary to Community law. In this context, counsel refers to the decision of the Court of Justice in joint cases 3, 4 and 6/76 Kramer [1976] E.C.R. 1279 and in particular paras. 51 and 52 of the judgment.

Counsel submits that article 2 (1) of Regulation 2847/93 provides that, in order to ensure compliance with all the rules enforced concerning conservation and controlling measures, each member state shall monitor fishing activity and related activity within its territory and within maritime waters subject to its sovereignty or jurisdiction. This includes, inspecting fishing vessels and investigating all activities, including landing, selling, transporting and storing fish and recording landings and sales. article 4 (1) of Regulation 2847/93 goes on to provide that the inspection and monitoring described in Article 2 is to be carried out by each Member State on its own account by means of a system of inspection of its own choice, again emphasising that Community law does not require member states to implement rules of the type contained in conditions 8 and 9 of the applicant's mackerel licence.

Counsel submits that since the impugned Order was made in exercise of the State's bar to monitor and control sea fishing activities and does not involve giving effect to Community law, it could not have been made in exercise of powers conferred by s. 224B of the Fisheries (Consolidation) Act, as amended, which provides, inter alia, as follows:-

"Without prejudice to the generality of section 3 (1) of the Act of 1972, the Minister may by regulations make provision to give effect within the exclusive fishery limits of the State to any provision either of the treaties or of any act adopted by an institution of the European Communities which authorises any or all of the Member States of the European Communities to restrict, or otherwise regulate in a manner specified in the provision, fishing in waters, or in part of waters, under its or their sovereignty or jurisdiction."

Counsel submits, that it follows that the impugned Order could not have been made under s. 3 (1) of the European Communities Act, 1972 (the Act of 1972), since that section empowers Ministers of State to make regulations to enable s. 2 of the Act to have full effect. Section 2 of the Act of 1972 provides:-

"From the 1^st day of January, 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties."

Counsel refers to the case of Browne v. the Attorney General (Unreported, Supreme Court, 16^th July, 2003) and submits that the present case, unlike the Browne case, does not involve a measure of giving effect to Community law, but rather a measure adopted by the State in the exercise of its power to manage and control sea fishing.

On this basis it is submitted that the instant case is distinguishable from the facts of Browne v. Attorney General.

Having quoted from a portion of the judgment of Kearns J. in the High Court in that case and from a portion of the judgment of Keane C.J in the Supreme Court, where it was indicated that there was no obstacle to the Minister having recourse to the European Communities Act, 1972, where he stated at page 30 of his judgment:-

"It is not in dispute in this case, that in these circumstances the Minister was empowered by s. 3 of the 1972 Act to make regulations for that purpose, even though the principles and policies which were being given effect to were not prescribed by the Oireachtas in primary legislation."

Counsel refers again to a portion of the judgment, at p. 32 thereof, where the Chief Justice indicated that "there is not the slightest doubt as to the power of the Minister to give effect by statutory instrument to the principles and policies contained in that measure, even though they have not been embodied in any Act of the Oireachtas: that is the clear object of s. 3 of the 1972 Act. What no Minister can do, in availing of the powers conferred by that section, is to provide for the creation of an indictable offence: that power was expressly reserved to the Oireachtas by sub-section. 3".

Counsel submits that the ratio decidendi of Browne v. Attorney General appears to be that because s. 3 (3) of the Act of 1972 prohibited Ministers from creating indictable offences when making statutory instruments for the purpose of giving effect to European Community law in this jurisdiction, the Minister could not have recourse to s. 223A of the Fisheries (Consolidation) Act, 1959, as amended, for that purpose, since that would effectively circumvent the prohibition on the creation of indictable offences contained in s. 3 (3) of the Act of 1972.

Here it is submitted that the measures at issue were not adopted for the purpose of giving effect to European Community law, but rather constituted the exercise of a Member State's power to manage and conserve the resources of the sea. It may be observed that this point, although not argued, appears to have been conceded by counsel for the applicant in Browne v. Attorney General. Counsel submits that it follows that the judgments in that case are not determinative of the issues arising for consideration in the instant case. Counsel submits that if it is accepted that the Minister did not implement Community law when he made the Order, the question then arises as to the ambit of his powers to make Statutory Instruments under s. 223A of the Fisheries Acts as a matter of domestic constitutional law. In this regard, reference is made to the judgment of Kearns J. in the High Court in the Browne case, where he stated that the Fisheries Acts:-

"… contained many principles and policies but not the principles and policies of these E.C. regulations. That is, they do not purport to regulate for a ban on the use of driftnets of a certain length, nor do they aim to further the Common Fisheries Policy." (at p. 33 of the judgment).

Counsel refers to the judgment of Denham J. in the Supreme Court in that case, where she held that the Fisheries Acts contained principles and policies as to the conservation and rational fishing of fish stocks in Irish waters and on the high seas and went on to observe that all of Ireland was bound by the principles and policies of the Common Fisheries Policy. Irish legislation continued to address these issues by way of implementing measures. It is submitted, by counsel, that these observations correctly describe the legislation applicable to the exercise of the State's continued power to regulate sea fishing activities.

Dealing with the validity of conditions 8 and 9 in the applicant's licence, since he is charged with having breached these conditions, counsel submits that condition 8 requires the applicant to give four hours notice of his intention to land or tranship mackerel at a port to a Sea Fishing Protection Officer stationed thereat. Counsel submits that the condition is incidental to, or consequential upon, the express powers provided for under the Order. The rationale for this condition is explained in Mr. Lavelle's affidavit, grounding the statement of opposition herein. In this affidavit at para. 8, he explains that the purpose of giving four hours notice is to ensure that inspections of all mackerel landings can take place. He indicates that no meaningful system of control could be exercised over the activities of mackerel fishing, without a system of advance notice of landings/transhipment being required of licensees. On this basis, it is submitted that it is clear that condition 8 is incidental to, or consequential upon, the requirement that a holder of a mackerel licence is prohibited from landing or transhipping mackerel other than at a specified place.

With regard to condition 9, relating to the fact that mackerel may be landed or transhipped at designated and named ports, counsel submits that the rationale for this condition is explained in the affidavit sworn by Mr. Lavelle and, in particular, at para. 14 thereof, where he explains that no meaningful system of control could be exercised over the activities of the mackerel fishery, without some limitation upon the number of locations where mackerel can be landed/transhipped. It was further pointed out by Mr. Lavelle that the ports listed in condition 9 were selected after consultation with the representatives of the mackerel fishery industry and were largely self-selected. On this basis, it is submitted that condition 9 is not ultra vires section 223A.

With regard to the impugned Order itself, it is submitted that it is not ultra vires s. 223A, as it is the licensing system that enables the Minister to administer the mackerel quota allocated to the State. It is submitted that on its face the Order comes within the scope of measures of conservation of fishery stocks and measures of rational exploitation of fisheries. On this basis, it is submitted by counsel that the Order should not be struck down as effectively circumventing s. 3 (3) of the Act of the 1972 as it does not implement European Union law.

Counsel submits that this leaves open the question of whether s. 223A is unconstitutional having regard to Article 15.2.1 of the Constitution. Counsel submits that the question is whether, by giving to the Minister the power to prescribe and adopt measures of conservation of the fish stocks and measures of rational exploitation of fisheries, the power of legislating for these matters has been effectively delegated to him. Counsel submits in the first instance that the impugned legislation is entitled to the presumption of constitutionality. Counsel refers to the double construction rule, whereby in the event of ambiguity, construction which is consistent with the constitutionality of the legislation ought to be preferred to any other construction.

Counsel submits that all of s. 223A is expressed in broad terms. On its face it furnishes an adequate legislative basis for the making of the Order as required by the principles and policies test applied to the construction of Article 15.2.1. The question to be answered is whether the powers contained in the provision are more than "a mere giving effect to principles and policies contained in the Act itself" It is submitted that s. 223A defines the underlying purpose of any delegated legislation made thereunder by reference to the twin principles of conservation of fish stocks and the rational exploitation of fisheries. Counsel submits that this enables the delegated legislation which it envisages to operate vis à vis sea fishing boats of the nature identified. On this basis, it is submitted that the Order gives effect to principles and polices contained in the Fisheries Acts. Counsel submits that the purpose of which orders may be made under s. 223A is clearly set out therein; the only question that arises relates to the specific circumstances in which such orders may be made. Accordingly, it is submitted that in the light of the presumption of constitutionality and the operation of the double construction rule, the applicant has failed to establish that s. 223A is repugnant to the Constitution.

Counsel refers to the fact that in the Browne case the applicant was arrested on the high seas and this raised an issue which does not arise in the instant case.

In reply, counsel for the applicant addressed in the first instance the issue of the constitutionality of the impugned measure. It is submitted that if the measure in question is hybrid in nature insofar as it arises under both Community law and under national law it involves the creation of an indictable offence and as such must fall foul of Article 15.2.1 of the Constitution, on the same basis as in the Browne case. With regard to the impugned conditions, counsel submits that it is not appropriate to look at the condition itself, but to look at whether the Minister had power to make such conditions in any event.

CONCLUSIONS

At the heart of the instant case lies the issue as to whether measures such as those contained in the impugned Order and in the conditions applied to the licence of the applicant are measures which arise in the field of Community law in circumstances where the sole jurisdiction to legislate rests with the organs of the European Communities, or, alternatively, whether the measure in question falls within an area of competence reserved to the Member States, such as submitted by counsel for the respondents. It is clear that if the impugned measures are within the realm of community measures as opposed to measures falling within the competence of the State, that the decision of the Supreme Court in Browne v. Attorney General is determinative of the issue arising in these proceedings. From a reading of the judgment in that case, it does appear that the issue contended for by counsel on behalf of the respondents in the instant case was not argued before the Supreme Court and, accordingly, the decision in this respect may be described as per incuriam. If this Court is satisfied that the submissions advanced by counsel are such as to change the basis upon which the Supreme Court addressed its decision in the Browne case. The fifth recital to the Council Regulation (EC) No. 2847/93 reads:-

"Whereas control is first and foremost the responsibility of the Member States; whereas the Commission should also seek to ensure that the Member States monitor and prevent infringements in an equitable manner; whereas, therefore, the Commission should be provided with the financial, legal and legislative means to carry out this task as effectively as possible."

The ninth recital reads:-

"Whereas, to ensure that all catches and landings are kept under surveillance, Member States must monitor in all maritime waters the activities of Community vessels and all related activities allowing verification of the implementation of the rules concerning the common fisheries policy;"

Article 1 of this regulation reads as follows:-

"Article 1
1. In order to ensure compliance with the rules of the common fisheries policy, a Community system is hereby established including in particular provisions for the technical monitoring of:
- conservation and resource management measures,
- structural measures,
- measure concerning the common organization of the market,
as well as certain provisions relating to the effectiveness of sanctions to be applied in cases where the above-mentioned measures are not observed.
2. To this end, each Member State shall adopt, in accordance with Community rules, appropriate measures to ensure the effectiveness of the system. It shall place sufficient means at the disposal of its competent authorities to enable them to perform their tasks of inspection and control as laid down in this Regulation.
3. The system shall apply to all fishing activities and to all associated activities carried out within the territory and within the maritime waters subject to the sovereignty or jurisdiction of the Member States including those exercised by vessels flying the flag of, or registered in, a third country, without prejudice of the right of innocent passage in the territorial sea and the freedom of navigation in the 200-mile fishing zone; it shall also apply to the activities of Community fishing vessels which operate in the waters of non-member countries and on the high seas, without prejudice to the special provisions contained in fisheries agreements concluded between the Community and third countries or in International Conventions to which the Community is a party."

Title 1 to the regulation is entitled inspection and monitoring of fishing vessels and their activities. Article 2 reads as follow:-

"Article 2
1. In order to ensure compliance with all the rules in force concerning conservation and control measures, each Member State shall, within its territory and within maritime waters subject to its sovereignty or jurisdiction, monitor fishing activity and related activities. It shall inspect fishing vessels and investigate all activities thus enabling verification of the implementation of this Regulation, including the activities of landing, selling, transporting and storing fish and recording landings and sales.
2. Fishing vessels, which may exercise activities, flying the flag of third country and sailing in maritime waters subject to the sovereignty or jurisdiction of a Member State shall be subject to a system of communication of movements and of catches held on board.
Member States shall notify the Commission of the measures taken to ensure compliance with these procedures.
3. Each Member State shall monitor, outside the Community fishery zone, the activities of its vessels in cases where such control is required to ensure compliance with Community rules applicable in those waters.
4. In order to ensure that inspection is as effective and economical as possible, Member States shall coordinate their control activities. To that end, they may set up joint inspection programmes to allow the inspection of Community fishing vessels in the waters referred to in paragraphs 1 and 3. They shall take measures to permit their competent authorities and the Commission to be regularly informed on a reciprocal basis of the experience gained."

Article 4 reads as follows:-

"Article 4
1. The inspection and monitoring specified in Article 2 shall be carried out by each Member State on its own account by means of a system of inspection decided by the Member State.
In carrying out the tasks entrusted to them, Member Sates shall ensure that the provisions and measures referred to in Article 2 are complied with. Moreover, they shall act in such a way as to avoid undue interference with normal fishing activities. They shall also ensure that there is no discrimination as regards the sector and vessels chosen for inspection.
2. The persons responsible for the fishing vessels, premises or transport vehicles inspected shall cooperate in facilitating inspections carried out in accordance with paragraph."

Article 5 as inserted by Council Regulation (EC) No. 2846/98 reads as follows:-

"Article 5
Detailed rules for the application of this Title shall be adopted as necessary, without prejudice to the national competences, in accordance with the procedure laid down in Article 36, in particular as regards:
(a) the identification of officially designated inspectors and inspection vessels, aircraft and such other means of inspection as may be used by a Member State;
(b) the procedure for the inspection and surveillance of activities in the fisheries sector;
(c) the marking and identification of fishing vessels and their gear;
(d) the certification of the characteristics of fishing vessels which relate to fishing activities."

Article 7.1 as inserted by the said regulation 2846/98 reads as follows:-

"1. The Master of a Community fishing vessel who wishes to utilise landing locations in a Member State other than the flag Member State shall comply with the requirements of any designated port scheme established by that Member State in accordance with Article 38, or if that Member State does not operate such a scheme, he must inform the competent authorities in that Member State at least four hours in advance of:
- the landing location(s) and estimated time of arrival there,
- the quantities of each species to be landed."

Article 38 of Council Regulation (EEC) No. 2847/93 reads as follows:-

"Article 38
This Regulation shall apply without prejudice to any national control measures which go beyond its minimum requirements, provided that they comply with Community law and are in conformity with the common fisheries policy.
The national measures referred to in the first subparagraph shall be communicated to the Commission in accordance with Article 2 (2) of Council Regulation (EEC) No 101/76 of 19 January 1976 laying down a common structural policy for the fishing industry (9)."

In light of these provisions, which were referred to by counsel on behalf of the respondents in argument in this Court, it is necessary to consider whether the impugned provisions constitute national control measures which go beyond the minimum requirements laid down by the Common Fisheries Policy or whether they are measures which properly fall to be considered as measures it may adopt to meet the minimum requirements of Community law. In the context of s. 3 (1) of the European Communities Act, 1972, it is clear that such measures adopted under that provision are such as to enable s. 2 of that Act to have full effect. Section 2 of the Act of 1972 provides that:-

"From 1^st day of January, 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those Communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties."

It is clear that if the impugned measures are such as may be in excess of minimum requirements of Community law and within an area of discretion of the Member States as recognised in the provisions of Regulation 2847/93, as amended, that it would not have been appropriate to legislate for same, pursuant to the provisions of the Act of 1972.

I consider that the provisions of conditions 8 and 9 are such as not to be in direct application of any Community provision but are measures adopted by the respondent Minister within the limits of his discretion insofar as they do not compromise the operation of Community law and, in particular, the Common Fisheries Policy. I believe that it cannot be said that in adopting these measures by reference to the impugned order that the Minister was merely making regulations to enable s. 2 of the Act of 1972 to have effect. In conclusion, I believe that the impugned measures and, in particular, the impugned conditions 8 and 9 attached to the applicant's licence, constitute national control measures going beyond the minimum requirements of the provisions of Council Regulation (EC) No. 2847/93, which at the same time comply with Community law and are in conformity with the Common Fisheries Policy. The fact that the measures in question may be in conformity with the Common Fisheries Policy and comply with Community law does not ipso facto render the measures in question to be community control measures as opposed to national control measures and it is clear that the provisions of the Fisheries (Consolidation) Act, 1959 enabled the Minister to make regulations in the context of national control measures provided that they did not exceed the limits permitted by Community law. However, it is necessary to consider whether the impugned measures are in essence implementing Community policy or national policy.

In reaching this decision I have had regard to the decisions of the Supreme Court in Meagher v. Minister for Agriculture [1994] 1 I.R. 329 and Maher v. Minister for Agriculture [2001] 2 IR 139, which cases related to the limits of the power to legislate by means of regulation made under the terms s. 3 of the European Communities Act, 1972, in circumstances where the regulations were being made in purported implementation of the State's obligations to give full force and effect to European Community law in Ireland. The issue arises whether to use words applied by Keane C.J. in Maher v. Minister for Agriculture [2001] 2 IR 139 at p. 185 of the report, the choice of policy available to the member states, including this State, in the terms of the two council regulations referred to in this case can be said to be "reduced almost to vanishing point".

In the course of the judgment in Maher Fennelly, J. stated at pp. 245-247 as follows:-

"An enormous body of subordinate laws is, nonetheless, constantly passed by means of statutory instruments, regulations and orders. This type of delegated legislation is, by common accord, indispensable for the functioning of the modern state. The necessary regulation of many branches of social and economic activity involves the framing of rules at a level of detail that would inappropriately burden the capacity of the legislature. The evaluation of complex technical problems is better left to the implementing rules. They are not, in their nature such as to involve the concerns and take up the time of the legislature. Furthermore, there is frequently a need for a measure of flexibility and capacity for rapid adjustment to meet changing circumstances. Without suggesting that a different approach is required for the present case, by reason of the fact that it concerns the implementation of European Community legislation, it is obvious that the adoption of detailed rules regulating production and trade in agricultural products is a particularly notable example of the exigencies of this type of law-making. There is, for example, an obvious need to be able to react rapidly and often severely to sudden trading problems or so as to protect human and animal health in the face of the outbreak of disease.

On the other hand, it is obvious that secondary legislation largely bypasses parliamentary scrutiny and the democratic process. Thus, the courts have found it necessary to strike an appropriate balance between the protection of the exclusive law-making domain of the Oireachtas and the proper function of the executive. The distinction is a functional one, aimed at designating the proper bounds of legislative and executive power. Delegated legislation is permitted and does not infringe Article 15.2.1 °, provided that the principles and policies which it the delegated power can only be exercised within the four walls of the law. This serves the double purpose of preserving the legislative prerogatives of the Oireachtas and assuring to those affected by orders or regulations that the courts may be asked to police the bounds set by the law and, if necessary, to declare them to be ultra vires the powers of the relevant Minister or other delegated authority.

Cityview Press Ltd. v. An Comhairle Oiliúna [1980] 1.R. 381 remains the leading authority on the permissible bounds of delegation of legislative power. It concerned powers to impose a levy to finance the defendant, the industrial

training authority. The defendant could, inter alia, fix the amount of the levy as well as the categories of persons who were bound to pay it. The judgment of the court, given in response to a claim that the empowering statute was unconstitutional, was delivered by O'Higgins C.J.. The leading passage reads as follows at p. 399:-

'… the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving of effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits- if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body - there is no unauthorised delegation of legislative power.'

In the event, the court held that the Act in question contained "clear declarations of policies and aims" and that there had been no "unconstitutional delegation of authority."

Apart from Meagher v. Minister for Agriculture [1994] 1 I.R. 329, the principal recent authority of this court is Laurentiu v. Minister for Justice [1999] 4 IR 26. That case is notable for the discussion in the leading majority judgments of Denham and Keane JJ. of the antecedents of the test based on principles and policies in the common law countries and its place in the constitutional scheme of separation of powers. Denham J. stated at p. 61:-

"There are limits to permissible delegation by the organs created by the Constitution. The Oireachtas may not abdicate its power to legislate.'"

At pp. 247 to 255 under the title 'Delegated legislation: Community Law', Fennelly J addresses in detail the relationship between Community law and national law in implementation of same. At p 250-251 he stated, inter alia, as follows:-

"I believe it is possible to say that the passages just quoted do not give any support to the applicants' claim that member states act autonomously in making choices when implementing Community rules. They establish the following propositions.

Firstly, in the absence of common rules, or where Community law authorises such action, member states may adopt their own national rules. Secondly by virtue, inter alia, of Article l0EC (formerly Article 5 of the Treaty), member states must ensure the implementation of Community regulations and take no action to undermine them. Thirdly, in doing so, they are implementing Community law, with the result that general principles of Community law, notably the principle of equal treatment, but also the fundamental rights protected in the Community legal order, must be respected. Fourthly, Community law is indifferent as to the national method of implementation (subject to the principle of effectiveness, as explained in the passage from Dominikanerinnen-Kloster Altenhohenau v. Hauptzollamt Rosenheim (Case C-285/93) [1995] ECR I-4069, as well as the principle of equivalence, i.e. that rights under Community law are treated no less favourably than those granted by national law). For present purposes, that indifference relates to the choice between legislation and regulation.

In summary, member states, acting within the framework of Community regulations, exercise powers or discretions which are conferred on them for the furtherance of the objectives of the scheme in question. Community law does not require any particular form of implementation. That is a matter for the legal system of the member state concerned, except that the implementation must not have the effect of impeding the effectiveness of Community law."

Later at p. 254 he added, having reviewed the decision of the Supreme Court in Meagher v. Minister for Agriculture [1994] 1 I.R. 329, inter alia, as follows:-

"Meagher v. Minister for Agriculture [1994] 1 I.R. 329 is clear authority for the proposition that, where a provision of Community law imposes obligations on the State, leaving no room (or perhaps no significant room) for choice, then Article 15.2.1° of the Constitution is not infringed by the use of ministerial regulation to implement it. Both the judgment of the court and that of Denham J. expressly preserve the force of that provision, as it has been interpreted, for cases where such an obligation does not exist. The "principles and policies" test applies mutatis mutandis where the delegated legislation represents an exercise of a power or discretion arising from Community law secondary legislation. It applies with particular clarity to the case of directives where Article 249(EC) leaves the choice of forms and methods to the member states. The question will not arise so frequently in the case of regulations since they are directly applicable without the need for national implementing measures. Where a regulation leaves open a range of choice, the test will apply. Each case will have to be decided on its own merits. The mere existence of a Community regulation implies some sort of Community policy. Article 253(EC) obliges the Community legislature to state in such acts "the reasons on which they are based." Member state implementing measures come inherently within the scope of such a stated policy. However, the principle of the applicability of the test is a recognition of the possibility that the choices left to the member states may be of such significance in their nature or scope or so unconnected with Community policies and aims that they require legislation and that resort to regulations in such cases would infringe Article 15.2.1°."

There remains the issue whether the impugned measures in the instant case are ultra vires the power of the Minister insofar as it is argued that the measures in questions were not "necessitated" by the obligations of membership of the European Communities.

In the instant case it is clear that there are features which suggest that the impugned measures were not necessitated by the obligations of membership of the European Communities. However, it is clear from the terms of the Council regulations referred to, that Ireland was required to adopt appropriate measures to comply with its obligations under the terms of the Common Fisheries Policy. Accordingly, I believe that it can be said that while there was a limited discretion vested in the State that the essential obligation rested on it to comply with the Council regulations and to adopt appropriate measures within the State's discretion to fulfil its obligations.

I accept that there a number of distinguishing features between the instant case and that of Browne v. Attorney General, as outlined in his submission by counsel for the respondents. However, I feel constrained by the judgments delivered in the Supreme Court in that case, I do not find that the distinguishing features to be such as to disregard the import of the Supreme Court's decision in that case which is binding on this court. Counsel has relied upon the fact that in the earlier case the applicant was arrested on the high seas and that this feature is not present in the instant case. He has also submitted that the principles and policies at issue are those of Irish law as represented by the Fisheries Consolidation Act and not the principles and policies of the European Union or the European Communities. In light of the conclusions reached by the Supreme Court in the Browne case, I feel constrained to hold otherwise and in these circumstance that the Minister was not entitled to invoke the provisions of s. 223A in making the impugned orders. In essence, I hold that the impugned measures were, in essence, directed to implementing Community policy, albeit within the ambit of the limited discretion vested in the State under the Council regulations referred to. Accordingly, while the impugned measures have the appearance of national measures they are, I believe, to be considered as falling within the terms of the Common Fisheries Policy and not in mere application of national policy. I consider that the impugned measures have been made essentially in the context of the Common Fisheries Policy, although they are of a hybrid nature insofar as an area of discretion is left within the field of national law.

In all the circumstances I will allow the application of the applicant in light of the limited basis set forth in the amended statement of grounds, by making a declaration that the Mackerel (Licensing) Order, 1999, is ultra vires the powers of the respondents herein pursuant to s. 223A of the Fisheries (Consolidation) Act, 1959, (as inserted by s. 9 of the Fisheries (Amendment) Act, 1978, and amended by s. 4 of the Fisheries (Amendment) Act, 1983) on the ground at paragraph 11 B of the Amended Statement namely that the respondents have acted ultra vires in purporting to implement Council Regulation (EC) No. 2847/93 of 12th October, 1993, as amended by Council Regulation (EC) No. 2846/98 of 17th December, 1998, by purporting to promulgate the Mackerel (Licensing) Order, 1999, allegedly pursuant to s. 223A of the Fisheries (Consolidation) Act, 1959.

Approved: Ó Caoimh J.