RECORD NO. 471/2004
THE ATTORNEY GENERAL,
MINISTER FOR THE MARINE AND NATURAL RESOURCES.
1. This is an appeal by the Attorney General and the Minister for Marine and Natural Resources, the respondents/appellants, hereinafter referred to collectively as ‘the respondents’, from a decision of the High Court (Ó Caoimh J.) given on 31st July, 2004, whereby the Mackerel (Licensing) Order 1999 (S.I. No 311 of 1999) was declared to be ultra vires 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). The High Court determined that the Mackerel (Licensing) Order 1999 was ultra vires in that the Minister for the Marine and Natural Resources, hereinafter referred to as ‘the Minister’, had purported to promulgate the said Order pursuant to s.223A in order to give effect to Council Regulation (EEC) No. 2847/93, as amended by Council Regulation (EC) No. 2846/98.
2. Thomas Kennedy, the applicant/respondent, hereinafter referred to as the applicant, is a fisherman who holds a licence granted pursuant to article 3 of the Mackerel (Licensing) Order 1999 (hereinafter referred to as ‘the order’). There were two pertinent conditions attached to the licence. First, condition 8 required the applicant to give four hours notice to a sea fisheries protection officer at the relevant port of his intention to land or tranship mackerel at that port. Secondly, condition 9 provided that mackerel might be landed or transhipped only at ports designated and named in the licence or at such other ports as may be specified by a senior sea fisheries protection officer.
3. The applicant was charged with two offences alleging that on or about the 19th April, 2001, he violated the terms of the conditions of the licence by not giving four hours notice to the sea fisheries office and by landing mackerel at a non–designated port. The applicant pleaded not guilty to both charges. In both instances the violation of the licence condition was alleged to be in contravention of article 3(10) of the order and s.223A of the Act of 1959 (as amended). The applicant was returned for trial to the Circuit Court in Tralee.
4. These judicial review proceedings were then brought by the applicant. The applicant sought, inter alia, an injunction by way of an application for judicial review restraining the first named respondent from prosecuting the alleged offences of which the applicant is accused and charged. He also sought a declaration that two articles in the order relating to the two conditions in the fishing licence are ultra vires and exceed the jurisdiction of 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).
5. The issue before the High Court was whether the Minister had the power to make the order and impose the conditions on the applicant’s licence as purported to have been done.
The High Court held:
6. Grounds of Appeal
“ 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 11B 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.”
The respondent filed grounds of appeal, appealing on the basis that the learned High Court judge erred in law:
(i) In holding that the Order was directed to implementing Community policy, notwithstanding the finding (hereinafter referred to as ‘the finding’) that the provisions constituted a measure of conservation of fish stocks and of rational exploitation of fisheries within the meaning of section 223A;(ii) In holding that the Order fell within the terms of the Common Fisheries Policy, notwithstanding the finding;
(iii) In holding that the Order was made essentially in the context of the Common Fisheries Policy, notwithstanding the finding;
(iv) In holding that the respondents implemented Council Regulation (EC) No. 2847/93 of 12th October 1993, as amended by Council Regulation (EC) No. 2846/98 of 17th December 1998 by promulgating the Order;
(v) In holding that the Minister acted ultra vires by making the Order, notwithstanding the finding;
(vi) In failing to hold that in exercising the residual power of the State to manage and conserve the resources of the sea the Minister was entitled to make the Order.
7. The Law
7.1 First and foremost there is the law of the Community. Council Regulation (EEC) No. 2847/93 of 12th October, 1993, established a control system applicable to the Common Fisheries Policy. To achieve this aim, it was recited that it was necessary to include rules for the monitoring of conservation and resource management measures, structural measures and measures on the common organisation of the market, and certain provisions to deal with failure to carry out these measures, which must apply to the entire fisheries sector from the producer to the consumer. It was recited that whereas control is first and foremost the responsibility of the Member States, however, that the Commission should also seek to ensure that the Member States monitor and prevent infringements in an equitable manner and therefore the Commission should be provided with the financial, legal and legislative means to carry out this task as effectively as possible. It was recited that 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.
The extent of the Common Fisheries Policy and Commission control may be illustrated by the recital that whereas limitations on catches must be managed at both Member State and Community level, Member States should register landings and notify them to the Commission by computer transmission. In general, provision is made for the gathering of information and its transmission to the Commission. The recitals in the regulation indicate the overarching nature of the Common Fisheries Policy, while a nod is given to national provisions. It is recited that whereas this regulation should not affect the 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.
Title I provided for the inspection and monitoring of fishing vessels and their activities. Article 2.1 provided:
“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.”
Article 4 provided:
“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 States 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.”
Title II made provision for the monitoring of catches. Article 6.1 provides:
“The masters of Community fishing vessels fishing for a stock or group of stocks shall keep a logbook of their operations, indicating particularly the quantities of each species caught and kept on board, the date and location (ICES statistical rectangle) of such catches and the type of gear used”.
Article 6.3 provides: The species to be entered in the logbook under paragraph 1 are those subject to TACs or quotas, as well as others decided by the Council. The masters of the Community fishing vessels are required to enter in their logbook the quantities caught at sea, the date and location of the catches and the species referred to in Article 6.2.
Article 7 states:
“1. The master of a Community fishing vessel who wishes to utilize landing locations in a Member State other than the flag Member State must inform the competent authorities in that Member State at least two hours in advance of:
- the landing location(s) and estimated time of arrival there,
- the quantities of each species to be landed.
2. The master referred to in paragraph 1 who fails to make these notifications may be subject to appropriate sanctions by the competent authorities.”
Council Regulation (EC) No. 2846/98 of 17th December, 1998 amended the regulation referred to above, which established a control system applicable to the Common Fisheries Policy. The new regulation recited that controls on fishery products after landing should be reinforced and that the information about fishery products referred to in Article 9 of Regulation (EEC) No. 2847/93 should be available from the moment of landing until the final marketing stage. It was also recited that the means of control of each Member State should include interventions at sea, on landing, as well as after landing, while taking into account the specificities of each Member State. Reference was made to the risk of different types of fraud and for controls prior to and after landing.
Of specific importance is Title 1 which states:
Monitoring, inspection and surveillance; 2. Article 2 shall be replaced by the following:
1. In order to ensure compliance with all the rules in force, each Member State within its territory and within maritime waters subject to its sovereignty or jurisdiction shall monitor, inspect and maintain surveillance of all activities in the fisheries sector, particularly fishing itself, transhipment, landing, marketing, transport and storage of fisheries products and the recording of landing and sales. The Member States shall take the necessary measures to ensure the best possible control within their territory and within maritime waters subject to their sovereignty or jurisdiction, taking into account their particular situation.
2. Each Member State shall ensure that the activities of its vessels outside the Community fishery zone are subject to proper monitoring and, where such Community obligations exist, to inspections and surveillance, in order to ensure compliance with Community rules applicable in those waters; 3. The last sentence of Article 3)2) shall be deleted;
4. Article 5 shall be replaced by the following:
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; 5. Article 6(2) shall be replaced by the following:
‘2. From 1 January 2000 any amount greater than 50 kg of live-weight equivalent of any species retained on board, must be recorded in the logbook in areas other than the Mediterranean. For the fisheries operations in the Mediterranean Sea any amount greater than 50kg of live-weight equivalent retained on board of any species indicated on a list adopted under this Article must be recorded in the logbook; 6. Article 6(8) shall be replaced by the following:
‘8. Detailed rules for the implementation of this Article shall be adopted in accordance with the procedure laid down in Article 36, including:
- another geographical basis other than the ICES statistical rectangle, in certain specific cases, and
- recording of catches taken with small meshed gear and kept on board unsorted,
- the list referred to in paragraph 2.: 7. Article 7(1) shall be replaced by the following:
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;”
7.2 That then is relevant Community law, I shall consider next relevant national law. First, there is general national statutory law providing for community law.
In 1972 the European Communities Act, hereinafter referred to as the Act of 1972, was enacted to make provision for membership by the State of the European Communities. It was provided that from the 1st day of January, 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of the communities shall be binding on the State and be part of the domestic law: see s.2 of the Act of 1972. A power to make regulations was given to a Minister of State to enable s. 2 to have full effect: see s.3 of the Act of 1972. However, parameters were set to the making of these regulations. Thus regulations may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations to be necessary for the purpose of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of the Act of 1972). It is specifically stipulated that regulations under this section shall not create an indictable offence: see s.3(3). This is the basic scheme established by the Oireachtas where provision is made for the inclusion of the treaties of the European Communities into domestic law and where there is provision for the making of regulations, with the specific stipulation that a Minister could not by such regulations create an indictable offence. Such power was reserved to the Oireachtas.
7.3 The national law makes specific provision for regulations relating to fisheries. Section 223A of the Fisheries (Consolidation) Act, 1959, as amended, hereinafter referred to as s.223A, provides:
“(1) 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.
(1A) Without prejudice to the generality of subsection (1) of this section, an order under this section may-
(a) relate –
(i) generally to sea-fishing or to sea-fishing which is of a specified class or description,(iv) generally to fishing boats (including sea-fishing boats) or to fishing boats which are of such a class or description,
(ii) generally to fishing other than sea-fishing or to such fishing which is of such a class or description,
(iii) generally to fisheries other than sea-fisheries or to such fisheries which are of such a class or description,
(v) to boats, other than fishing boats, which are of such a class or description,(b) for the purpose of enabling the order to have full effect, extend any or all of –
(i) the powers conferred by this Act on a sea fisheries protection officer for the purposes of this Act,
(ii) the powers so conferred on an authorised person within the meaning of Part XVIII of this Act,
(iii) the powers so conferred on authorised officers within the meaning of section 301 of this Act,
(c) include such incidental, supplementary and consequential provisions as the Minister considers appropriate, and in case provisions are included in such an order by virtue of paragraph (b) of this subsection, this Act shall be construed and have effect in accordance with the terms of the order.
Section 224B, as inserted by s.10 of the Fisheries (Amendment) Act, 1978, as amended by s. 5 of the Fisheries (Amendment) Act, 1983, empowers the second named respondent to make regulations to give effect to Community law within the exclusive fishery limits of the State. Section 5 of the Fisheries (Amendment) Act, 1983 provides:-
“Chapter II of Part XIII of the Principal Act is hereby amended by the insertion of the following section after section 224A (inserted by section 10 of the Act of 1978):
‘224B (1) 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 Sate to any provision either of the treaties or of any act adopted by an institution of the European Communities which authorises any or all 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.
(2) Regulations under this section may include such incidental, supplementary and consequential provisions as appear to the Minister to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act).(3) A person who fishes or attempts to fish in contravention of regulations under this section shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000, and, as a statutory consequence of the conviction, to forfeiture of all or any of the following found on the boat to which the offence relates:
(a) any fish,
(b) any fishing gear.”
7.4 There is also relevant case law. In Browne v Ireland  3. I.R. 205. the issues included: (a) Whether the Drift Nets order in issue was ultra vires the power of the Minister for Marine & Natural Resources having been made in purported exercise of powers conferred on him by s.223A of the Fisheries (Consolidation) Act 1959, as amended, and not in exercise of the powers conferred on the said Minister by s.3 (1) of the European Communities Act, 1972 as amended; (b) Whether the Drift Nets order in issue was ultra vires the power of the Minister under s.223A of the Act of 1959 in purporting to authorise the creation by the said Minister of an indictable offence outside the exclusive fisheries limits of that State; (c) Alternatively, if the Drift Nets order were intra vires s.223A, the latter section constituted an impermissible delegation of law making power by the Oireachtas to the Minister contrary to Article 15 of the Constitution:
Keane C.J. pointed out that it was accepted that Council Regulation (E.C.) 1239/98, which prohibited the use by vessels of Member State within their exclusive fishing limits or on the high seas of certain types of Drift Nets, is directly applicable to the State to the same extent as if it were an Act of the Oireachtas, and in the circumstances the Minister was empowered by s.3 of the Act of 1972 to make regulations for that purpose: the principles and policies being found in the regulation. Keane C.J., citing Cityview Press v An Chomhairle Oiliúna  I.R. 381, stated that secondary legislation will trespass on the exclusive law making role of the Oireachtas unless it does no more than give effect to principles and policies laid down in an Act of the Oireachtas, but that this does not apply to regulations intended to give effect, by virtue of s.3 of the Act of 1972, to European Community measures such as the regulation in issue, but that such regulation cannot create an indictable offence.
The issue before the court was whether the Order was intra vires s. 223A of the Act of 1959 or not. Keane C.J., (with whom Murray J. (as he then was), McGuinness J., and Hardiman J. agreed) held that the Order was intended to give effect to the principles and policies of the Community Council Regulation 1998, and not any act of the Oireachtas as parent legislation. Keane C.J., stated:
“.. there is not the slightest doubt as to the power of the second respondent 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 Act of 1972. 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 subs. (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 Act of 1972.”
Keane C. J., was reinforced in this interpretation by the terms of s.224B of the Act of 1959 where provision is made expressly for the creation of an indictable offence. He expressed the view that such a deliberate omission from the statute is not consistent with the intention to confer such powers on the Minister by s.223A.
This analysis of s.223A and s.224B of the Act of 1959 was central in the Browne v. Ireland case. It is also pivotal in this case. For the Court is considering and contrasting the powers conferred on the Minister by the two sections.
8. Submissions on behalf of the Respondents
The respondents, in appealing to this Court, submitted that the Order is intra vires s. 223A of the Fisheries (Consolidation) Act, 1959. It was submitted that unlike the Sea Fisheries (Driftnets) Order 1998, successfully impugned in Browne v Ireland, the Order does not implement European Community Law, and, it was submitted that it cannot be attacked on the basis that it effectively circumvents s. 3(3) of the European Communities Act, 1972. It was submitted that this case does not involve a measure 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 and so is distinguishable from Browne v Ireland. It was submitted that the measures were adopted not for the purpose of giving effect to Community law but rather constituted the State’s residual power to manage and conserve the resources of the sea, albeit acting in the context of the Common Fisheries Policy.
9. Submissions on behalf of the Applicant
On behalf of the applicant, responding to the appeal, it was submitted that the appeal should be dismissed, and that the Court should declare:
(a) The Minister acted ultra vires s.3 (3) of the Act of 1972 by promulgating a statutory instrument dealing with the Common Fisheries Policy which created an indictable offence.(b) If the matters in question are matters of domestic law, then it is submitted that conditions No. 8 and No. 9 are ultra vires the provisions of the 1999 Order and s. 223A of the 1978 Act.(c) If conditions No. 8 and No. 9 are intra vires, then s. 223A of the Act of 1978 is unconstitutional in effectively assigning to the Minister the power to determine policy in the areas of fishing conservation and the rational exploitation of fisheries.
10. Cross Appeal
The applicant filed a late cross appeal, notice to vary, contending that the judgment of the High Court should be varied as follows:
(i) That the provisions of conditions 8 and 9 of the applicant’s licence were in effect a direct or indirect application of a European Community law provision by the Minister.
(ii) That the substantive issues raised by the applicant in relation to conditions 8 and 9 of the applicant’s licence being ultra vires as set out in paragraph 4 and 5 of the amended statement required to ground the application for judicial review should be adjudicated upon by the Supreme Court or in the alternative should be remitted back to the High Court for its determination on the issues.
The core of this appeal relates to the use by the Minister of s. 223A. On behalf of the respondents it was argued that the principles and policies of the parent act cover the matters in the Order. On behalf of the applicant it was submitted that the principles and policies are to be found in Community law. Another way of setting out this issue is to ask the question as to whether the Minister purported to use s.223A to give effect to Community law, including Council Regulation (EEC) No. 2847/93, as amended by Council Regulation No. 2846/98. I will address this net issue which arises on an appeal from a decision of the High Court reached on the limited basis set forth in the amended statement of grounds.
The terms of s.223A are set out earlier in this judgment, as too are the terms of s.224B which should be read together with s.223A. It is clear that the Act established a scheme within which both s.223A and s. 224B have a role. They were analysed in the Browne v Ireland.. The sections form part of a fisheries policy which is required to be analysed in the context of Irish law and the Common Fisheries Policy.
The European Communities Act, 1972, specifically states a principle and a policy that regulations made by a Minister enabling Community law shall not create an indictable offence: “Section 3(3) Regulations under this section shall not create an indictable offence”. It is an important principle and policy of the legislation. It is a limitation on the power of a Minister. It retains to the Oireachtas the power to create indictable offences. This recognition of the power of the Oireachtas is consistent with Community law, as the method of implementing Community law is a matter for the Member State. This principle and policy may be revisited by the Oireachtas. However, in view of the expressed policy in the Act of 1972 any change in that policy should be clear from the words of a statute. There should not be an ambiguity. The Oireachtas did enact in express terms a provision in s.224B whereby the Minister may by regulations give effect to Community law and it was stated that a person who fishes or attempts to fish in contravention of regulations under this section shall be guilty of an offence and shall be liable on conviction on indictment to a fine not exceeding £100,000 and forfeiture. It is in this context that s.223A and its use falls to be analysed.
Article 2(1) of Council Regulation (EC) No. 3760/92 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, inter alia, for a rational and reasonable exploitation of such resources on a sustainable basis. With that in view, 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. As Mr. James Lavelle, Assistant Principal Officer at the Department of the Marine and Natural Resources, states in his affidavit:
Article 1(1) of Council Regulation (EEC) No. 2847/93 establishing a control system applicable to the common fisheries policies, as amended by Council Regulation (EC) No. 2846/98, establishes a Community system to ensure compliance with the rules of the common fisheries policy. As Mr. James Lavelle also pointed out in his affidavit:
“To that end, and in order to ensure sustainable exploitation activities, the regulation establishes a framework for the regulation of excess, management and monitoring of exploitation activities, as well as the requite means and procedures”.
Section 223A of the Act of 1959 in authorising the Minister to prescribe by order “measures of conservation of fish stocks and measure of rational exploitation of fisheries” does so without regard to the objectives or rules of the common fisheries policy. In so doing the Oireachtas conferred on the Minister a wide discretion based on the principles and policies of the section. The principles and policies of that section are not limited or governed, at least within its own terms, by the rules and objectives of the common fisheries policy. Section 224B on the other hand authorises the Minister to make Regulations making provision:
“This system is to include provisions for the technical monitoring of, inter alia, conservation and resource management measures. To the end, each Member State is to adopt, in accordance with Community rules, appropriate measures to ensure the effectiveness of the system”.
The analysis of the Ministerial Order in question in this case cannot take place in a vacuum. In this respect Council Regulation (EEC) No. 2847/93 as amended by Council Regulation 2846/98 is of critical importance. A review of the relevant Community Regulations as set out above and the common fisheries policy as reflected in those Regulations leads one to the inevitable conclusion that it would be unrealistic to consider that the Order was enacted for the purpose of a residual power of the State to manage and conserve the resources of the sea for national purposes without reference to the Community Regulations and the common fisheries policy.
“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 authorise any or all of the Member States … to restrict … fishing in waters, or in part of waters, under its or their sovereignty or jurisdiction”.
Ireland is under an obligation to manage, control and supervise the Community system at national level. In doing so it is under Community obligation to inspect fishing vessels and to control and investigate all activities which include the enforcement of the TAC for the mackerel species, landing, sales, transport and storage of fish. It was part of the State case that the landing and inspection of mackerel is designed to ensure full compliance by the fishing fleet with the relevant Community Rules and to protect and conserve aquatic resources for that purpose. Although the mackerel licensing regime may serve national interests it is maintained and administered for the purpose of serving the Community interest in accordance with Ireland’s obligations under the common fisheries policy.
In this case there is no doubt that the order made by the Minister is in substance an order made for the purpose of restricting fishing in order to conserve marine resources so as to give effect to the rules and objectives of the common fisheries policy as authorised by the Community Regulations. Essentially it serves the principles and policies of Community measures. Consequently, Browne v. Ireland is not distinguishable. On consideration of the regulations and the Order, in the context of the Common Fisheries Policy, and with reference to s.223A and s.224B, I am satisfied that the specific conditions of the Order in issue are primarily based on Community law. The fact that there is an element of national management does not vitiate the overarching Community law.
In the scheme of the Irish fisheries legislation it could not have been intended by the Oireachtas that s.223A would be used to implement Community law, in light of the clear words of s.224B. At issue in this Order is the conservation of fish stocks (a competency of the European Union) where the Member States have an obligation to enforce the conservation. The relevant conditions in issue, condition 8 and 9, are grounded in Article 2 of the regulation, i.e. Community law. If s.223A were considered an appropriate basis for the statutory instrument it would, as pointed out by Keane C.J., in Browne v. Ireland, be used to circumvent s.224B (quite apart from any consideration of s.3(3) of the Act of 1972).
I am satisfied that the learned trial judge was correct in allowing the application of the applicant on the limited basis, and in making a declaration that the Order is ultra vires the powers of the respondents under s.223A of the Fisheries (Consolidation) Act, 1959, as amended, on the ground that the respondent had acted ultra vires in purporting to implant 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.
Consequently, I would dismiss the appeal.
THE SUPREME COURT
Record No. 471/2004Murray C.J.
THOMAS KENNEDY Applicant/Respondent
THE ATTORNEY GENERAL,
MINISTER FOR THE MARINE AND NATURAL RESOURCES.
Judgment delivered by Mr Justice Fennelly on 31st day of May, 2005.
I regret that I find myself unable to agree with the majority judgment of the Court delivered by Denham J that this appeal should be dismissed. Nonetheless, I gratefully adopt her comprehensive account of the facts, the history of the proceedings and the legal issues.
The High Court has declared the Mackerel (Licensing) Order, 1999 (“the Order”) to be ultra vires the power invoked by the second-named Respondent (“the Minister”) in making it. As I understand the conclusion of the majority judgment, it is that the Order was adopted in implementation of the Common Fisheries Policy (“CFP”) of the European Community, that the legislative scheme found in the Fisheries Acts as amended contains section 223A, under which the Order was adopted, and an alternative, section 224A. Denham J states that “it could not have been intended that s.223A would have been used to implement Community law, in light of s.224B.” It is further explained that:
In effect, the conclusion is that the Order could only have been adopted under section 223B.
“If s.223A were considered an appropriate basis for the statutory instrument it would, as pointed out by Keane C.J., in Browne v. Attorney General, be being used to circumvent s.224B.”
The view of the learned High Court judge, O’Caoimh J was centrally based on his analysis of the way in which the Order relates to the CFP. At the commencement of the deciding part of his judgment, he said:
As counsel for the Minister has pointed out, it is difficult to discern the precise conclusion the learned trial judge reached on what he there called “the heart of the …case.” At one point, he stated 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.” On this basis, he might have been expected to have held the Order to be intra vires. However, at a later point, he decided 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.” He continued: “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.”
“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.”
Apart altogether from whether either conclusion leads to the result that the Order is ultra vires the powers of the Minister, it is obvious that the interaction between Community and national competence was central to the decision of the High Court.
I have come to the conclusion that:
1. The Order falls within the scope of “measures of conservation of fish stocks and measures of rational exploitation of fisheries,” which defines the scope of the Minister’s power under section 223A; 2. The Order, while adopted within the framework of the CFP, was formulated within the area of discretion allotted under Community rules to the Member States; 3. The Order could not have been made pursuant to section 223B, as its terms would have had to have be “specified” in a Community act to comply with the requirements of that section;4. The decision of the majority of this Court in Browne v Attorney General and others does not determine that no Order can be made under section 223A, which involves giving effect to the discretionary power of a Member State.
I do not believe that there is any real controversy about the first proposition. Nonetheless, it is important to recognise that it was not part of the Applicant’s case, nor was it determined by the learned trial judge that the measures contained in the order were not capable of being “measures of conservation of fish stocks and measures of rational exploitation of fisheries.” Apart from the generality of those words, the section, which is set out in full in the judgment of Denham J, extends to regulating such matters as sea-fishing, fisheries, fishing boats and provides for the inclusion of “such incidental, supplementary and consequential provisions as the Minister considers appropriate.” I believe, therefore, that it is not in controversy that the Order could have been adopted under section 223A, were it not for the existence of section 223B. I will later refer to the affidavit of Mr James Lavelle of the Department of the Marine and Natural Resources, who explains the purpose of the Order and how it contributes to the statutory objective.
The second proposition is the crucial one. In order to address it, it is necessary to recall the relationship between the CFP and the powers of the Member States. Denham J has summarised many of the relevant provisions of Community law and I do not propose to repeat them.
That fisheries policy has for many years been a matter within the exclusive competence of the European Community is not in doubt. However, the Member States play an indispensable role in the execution of that policy. As in most areas of Community law and policy, the Community does not act through its own services. It neither has the resources, nor has it the function of carrying the policy into effect. Most importantly, of course, the Community has no policing arm and no criminal courts. Therefore, in the manner set out in some detail in the judgment of Denham J, the execution of Community policy depends almost entirely on the services of the Member States. Nowhere is this proposition more clearly borne out than in Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy.
This regulation, with others, comprises a complex system of control and management of fisheries. Member States are placed, in many instances, under express obligations. To cite but one example, each Member State is obliged to notify the Commission by computer transmission before the end of each month of the quantities of fish caught (Article 18). At the same time, and especially in respect of control, supervision and inspection measures, the Member States are usually required, for example, to “adopt provisions to verify compliance” (Article 24) and “detailed rules may be adopted…” (Article 26). There are specific instances in the complex of fisheries regulations where Member States are expressly permitted to adopt their own control and inspection measures. Perhaps most importantly, the Member States have power to allocate fish quotas among their own fishing fleets. All of this is expressed generally in Article 4(1):
The thirty fifth recital to the Regulation clearly delineates the respective responsibilities of the Community and the Member States by stating that it “does not affect national provisions on monitoring, which, while coming within its scope, go beyond its minimum provisions, provided that such national provisions are in conformity with Community law.”
“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 each Member State.”
Counsel for the Minister has, however, submitted that, in allocating responsibility in this way, the Council was reflecting longstanding jurisprudence of the Court of Justice as expressed in Joined cases 3, 4 and 6/76 Kramer  ECR 1279 at paragraph 52:
I do not think it can be correct to go so far. Kramer was decided prior to culmination of the many developments of the 1970’s in the decision of the Court of Justice in case 804/79 Commission v United Kingdom  E.C.R. 1045. The Court there held that, from the end of the transitional period for the UK, Ireland and Denmark on 31st December 1978, “the power to adopt …measures relating to the conservation of the sea has belonged fully and definitively to the Community.” It continued:
“……a Member State does not jeopardise the objectives or the proper functioning of the system established by [the CFP regulations] if it adopts measures involving a limitation of fishing activities with a view to conserving the resources of the sea.”
“Member states are therefore no longer entitled to exercise any power of their own in the matter of conservation measures in the waters under their jurisdiction. The adoption of such measures , with the restrictions which they imply as regards fishing activities , is a matter , as from that date, of Community law. As the Commission has rightly pointed out, the resources to which the fishermen of the member states have an equal right of access must henceforth be subject to the rules of Community law.”
The Order represents a specific measure adopted by Ireland as a Member State introducing a system of licensing for mackerel fishing in the context of Community quotas. The applicant is being prosecuted for breaches of two specific provisions of his license. As explained by Denham J, he has been charged with violating the conditions of the licence by not giving four hours notice to the sea fisheries office and by landing mackerel at a non–designated port.
Mr Lavelle’s affidavit, sworn on behalf of the Minister, fully explains the context and purpose of the Order and how it relates to the CFP. The purpose of the regulations is to establish a framework for the conservation and protection of resources. The Community established a regime based on an annual total allowable catch (TAC or quota) for the various species of fish allocated to each Member State. Such a TAC is allocated to Ireland for mackerel. Most of the Irish mackerel TAC is fished by the dedicated pelagic segment of the Irish fishing fleet, i.e. those with refrigerated salt-water facilities. Less than ten per cent, 7,000 tonnes in 2001, is assigned by the State to less well-equipped vessels in the “polyvalent segment,” which fish for all species and to which the applicant’s vessel belongs. This segment is further divided into vessels under and over 65 feet in length. The applicant’s vessel is more than 65 feet and is licensed to fish against a quota of 5,500 tonnes.
Because the fishing capacity greatly exceeds the available quota, close monitoring is essential if the stock is not to be irredeemably damaged or even fished out entirely. Ireland is responsible for the management, control and supervision of the Community system in Irish territorial waters and over Irish vessels in Community waters. Its obligations include inspecting fishing vessels and investigating all activities, including landing, selling, transporting and storing fish and recording landings and sales.
The effect of the Order was to continue in force the licensing regime in relation to mackerel fishing established in 1984, when the Community introduced a TAC for that species. Mr Lavelle describes the effect of the Order as follows:
Having explained the function of the Order, Mr Lavelle turned to the purpose of the particular licensing conditions whose alleged breach led to the applicant’s prosecution.
“The Mackerel (Licensing) Order, 1999, expressly prohibits all persons from fishing for mackerel in Community waters from an Irish registered sea fishing 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.”
Condition 8, 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. This condition represents a consistent policy of having all mackerel landings inspected by sea fisheries protection officers. The shoaling characteristics of mackerel make it possible for large catches to be made in a short period of time and no meaningful system of control could be exercised over the mackerel fishery without a system of advance notice of landing/transhipment being required of licensees. Mr Lavelle makes the same point about condition 9 requiring that the applicant land mackerel at one of six named ports. He says that it would not be logistically possible to monitor all potential landing points along the coastline. In any event, these ports were identified in consultation with representatives of the mackerel fishery. It was largely self-selected as the great bulk of mackerel are, in fact, landed at for of the named ports.
He says that this policy of 100% inspection is designed to ensure full compliance by the fishing fleet with the relevant Community rules and to protect and conserve available and accessible living aquatic resources.
The result is that the mackerel licensing regime serves both Community and national interests. Ireland is obliged, in the first instance, to allocate the TAC among Irish fishing interests. The Community obligation leaves discretion to the Member State regarding the allocation of quotas and systems of management and supervision. Clearly, the decision to adopt a system of 100% inspection was made by the Minister in the exercise of his discretion. It was not a requirement of Community law, although Mr Lavelle drew attention to a similar four hour notice provision where a Community vessel wishes to use a landing location in another Member State: see Article 7(1) of Council Regulation 2847/93 as amended by Article 1(7) of Council Regulation 2846/98. Quite obviously also, Community law did not require the Minister to limit landing of mackerel catches to six named ports. The combined purpose of the provisions was to ensure a high level of respect for the quota limits.
It follows from all of the foregoing that the Order forms part of the Community scheme for the management of fisheries and the supervision and enforcement of that system by the Member States, who may exercise discretion as to the means of supervision and control.
At first sight section 223A seems an eminently suitable vehicle for giving effect to the objectives of the Order. It is indisputably a measure dealing both with the “conservation of fish stocks” and it concerns “the rational exploitation of fisheries.” It relates to a specified class of sea-fishing and to fishing boats. The section was originally enacted in 1978, but, was amended in 1983, i.e. after the end of the transitional period and after the decision of the Court of Justice in Commission v United Kingdom. It seems natural and logical to ascribe to the section the function of giving effect to the CFP, insofar as the Member States are required to manage, control and supervise fisheries. It could not have meant that Ireland, via ministerial orders adopted under the section was authorised to enact autonomous conservation measures.
However, the learned trial judge felt constrained by the decision of this Court in Browne v Attorney General and others  I.R. 205 to reach the contrary conclusion. The judgment of the majority of the Court delivered to-day arrives at the same result. The Minister has argued that Browne is distinguishable.
The Order at issue in Browne was the Sea Fisheries (Drift Net) Order 1998. That order expressly recited that it was being adopted “for the purpose of giving effect to Council Regulation (EC) No. 123/98 of 8th June 1998.” That Council Regulation contained express, detailed and mandatory rules prohibiting the use and keeping on board fishing vessels of drift nets. What the Order of 1998 did, in that case, was to incorporate by reference the relevant provisions of the Council Regulation. It is clear from what I have said that the Order at issue in this case does not implement or give effect to any such express Community requirement. Nor does it declare that it does so.
Keane C.J. delivered the decision of the majority in Browne. In the decisive part of his reasoning (page 220) he pointed out, as was clearly the case, that the Order of 1998 was intended to give effect to the principles and policies of the Council Regulation.
The Chief Justice proceeded to state:
“There is not any Act of the Oireachtas in existence setting out principles and policies applicable to the conservation of fishery resources both within the exclusive fishery limits of the State and on the high seas. 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)  2 E.C.R. 1045, since the 1st 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 European Communities.”
The Chief Justice appears to treat the term, “the high seas” as including Community waters. At a later point the Chief Justice seems to consider that section 224B is, indeed, capable of justifying measures extending into Community waters and necessarily beyond national territorial waters.
In the crucial later passage of his judgment, the Chief Justice laid some emphasis on the proposition that “[w]hat 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” [section 3(3) of the European Communities Act, 1972.] The Chief Justice did not, however, arrive at the conclusion that the Order of 1998 offended against this prohibition. In that case, as in this the offence is created by section 223A(2) as inserted by section 9 of the Fisheries (Amendment) Act, 1978. The indictable offence is created by section 2 of the same Act. However, the Chief Justice proceeded as follows:
On a first reading, that passage seems heavily influenced by the proposition that an indictable of fence had been created. However, at the conclusion of his judgment, the Chief Justice made it clear that he was not deciding that issue. Therefore, it seems to me that what was crucial to this reasoning was that there had been available to the Minister a provision, section 224B, which, in combination with section 3 of the Act of 1972, expressly allowed for the adoption of measures such as the Order of 1998. On the principle, expression unius, he concluded that section 223A could not be used, given the existence of an expressly applicable and more suitable alternative.
“There is no indication whatever in the language of s. 223A that it was envisaged by the Oireachtas that the second respondent 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 Act of 1972.
That conclusion is reinforced when one considers the terms of s. 224(B) of the Act of 1959 which was inserted in the original Act by the Oireachtas at the same time as s. 223A. Had it been the intention of the Oireachtas at that time to empower the second respondent by regulation to give effect on the high seas to measures of the European Community and to create an indictable offence in respect of a contravention of such regulations, it is difficult to understand why they did not avail of the provision which they clearly considered appropriate in the case of s. 224B. The application of the maxim expressio unius est exclusio alterius would suggest that such a deliberate omission on the part of the draftsman is not consistent with an intention to confer those powers on the second respondent by virtue of s. 223A.”
It seems to me that, so interpreted, Browne is readily distinguishable. The Order of 1998 was explicitly adopted to give effect to the mandatory drift net prohibitions in the Council Regulation. Not only did it expressly declare that as its purpose, but it did so in a manner which corresponded precisely with the terms of the Community instrument. That is clearly not so in the present case. As I have pointed out, there is no Community instrument requiring the State to adopt the rules contained in the Order, and certainly not those contained in conditions 8 or 9 of the license. I would go further. Section 224B provides:
“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 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.” (Emphasis added)
The underlined provision seems to mean that this section could only be used to give effect to Community acts which provided for the “manner” of the regulation. The Order did not give effect to any such provision.
By contrast with the case of the Order of 1998, in adopting the Order at issue in this case, the Minister decided on the manner of regulation. He was not required to do so by Community law.
In my view, therefore, the Order was not ultra vires the power of the Minister under section 223A and I would allow the appeal. Since this is a minority judgment, it is unnecessary to consider the cross-appeal.