Supreme Court of Ireland Decisions

 
THE SUPREME COURT

Keane C.J.

Denham J.

Murray J.

McGuinness J.

Hardiman J.

139/02

BETWEEN

VINCENT BROWNE

APPLICANT

AND THE ATTORNEY GENERAL, THE MINISTER FOR THE MARINE AND NATURAL RESOURCES, IRELAND AND DISTRICT JUDGE JAMES O'CONNOR

RESPONDENTS

[Judgments delivered by Keane CJ & Denham J; Murray J, McGuinness J & Hardiman J agreed with Keane CJ]

JUDGMENT delivered the 16th day of July, 2003, by Keane C.J.

The Factual Background

The plaintiff is the master of an Irish fishing vessel, the MFV "Antonia". His livelihood depends principally on fishing for tuna and he is a member of the Irish Tuna Association. On the 24^th June 2000 the Antonia was fishing for tuna in an area of the Atlantic some 400 miles southwest of Dingle and 200 miles outside the exclusive fishery limits of the State. While it was so engaged, it was boarded by a party from an Irish naval vessel led by Sub-Lieutenant Bernard Heffernan. The applicant having confirmed that he was fishing for tuna, his fishing gear and nets were inspected. He was asked to shoot all the nets on board in the water and, this having been done, they were measured. He was then advised that he and the boat were being detained on suspicion of having in excess of the permitted quantity of drift nets on board and that they would be escorted to Castletownbere. The vessel and gear were subsequently detained by an order of the fourth named respondent and the applicant was charged with two charges of being in breach of the relevant regulations. The fourth named respondent returned the applicant for trial to the Cork Circuit Court, but on the 19^th December 2000 he was given leave by the High Court to apply for orders of prohibition and certiorari in respect of these proceedings on a number of grounds to which I shall refer in more detail at a later stage. A statement of opposition having been filed on behalf of the respondents, the judicial review proceedings came on for hearing before Kearns J. In a reserved judgment delivered on the 6^th March 2002 he granted the applicant inter alia an order of prohibition restraining the first named respondent from prosecuting the applicant on the charges in question. From that judgment and order, the appellants now appeal to this court.

The background to the litigation is a maze of Acts of the Oireachtas and orders made thereunder and regulations of the European Union. However, before identifying the particular provisions which gave rise to the detention of the MFV Antonia and the prosecution of the applicant, the factual context of the regulatory scheme, of which, it was alleged, the applicant had fallen foul must be explained in more detail.

From the late 1980's onwards, there has been concern at an international level over the potentially damaging effects of the use of drift nets for fishing on the ground that it constitutes an indiscriminate and wasteful method of fishing with harmful consequences for the conservation of natural resources. One particular cause of concern was that they resulted in catches of cetaceans or marine mammals such as dolphins.

Since the early 1990's, Irish fishing vessels have been fishing for albacore tuna in the northeast Atlantic by means of drift nets. An EC regulation (Council Regulation (EC) 984/97 of April 29^th 1997) provided that, as from January 1^st, 2002, no vessel was to keep on board any drift nets intended for the capture of certain species of fish, including albacore tuna. Until December 31^st' 2001, the regulations provided for a transitional regime, under which a vessel could keep on board for use as nets for fishing one or more drift nets the total length of which did not exceed 2.5 kilometres provided that it was authorised so to do by the competent authorities of the relevant member state, (in Ireland the second named respondent ("the Minister")). There were also restrictions on the number of authorisations that could be granted by the member state during the transitional period.

When the Antonia was boarded by Sub-Lieutenant Heffernan and his party on the day in question, he was told by the applicant that there were 2.5 kilometres of drift net stowed in the pen on the vessel. When this net was shot at the request of Sub-Lieutenant Heffernan, the crew of the fishing vessel attached floatation buoys on to lines on the net. These lines were fixed to the surface line of the net, i.e., the line that has smaller buoys permanently attached to it. It is not in dispute that such a net is a "drift net" within the meaning of the relevant Irish regulation relied on by the first named respondent in the pending proceedings, i.e.,

"A wall of netting used in fishing, which is free to move according to the wind and tide."

When measured by one of the boarding party, it was found to be 2.545 kilometres in length, i.e., only marginally longer than the length permitted under the relevant regulations.

However, there was a second net in the pen which the applicant said was a "bottom set gill net", i.e., a net of a type which could be anchored to the sea bed so that it could not drift with the wind and tide. When the applicant was told by Lieutenant Heffernan that he wanted to measure this net also, the applicant asked whether he could attach anchors to it, but this request was refused. The net was then shot and measured in the same manner as the first net and was found to be 4.554 kilometres in length. The applicant claims that this is not a "drift net" within the meaning of the relevant regulations, that it was not being used for fishing when the boarding party intervened as the waters were too deep, but that, as the boat came to shallower water, the net would be used with anchors attached.

Whether the second net was a "drift net" for the purposes of the relevant regulation is, it is accepted, a matter that would have to be determined in the pending criminal trial, if it was allowed to proceed. The Attorney General and the Minister contended that the carrying on board the vessel of a net of these dimensions is in breach of the relevant regulation and the fact that there were anchors and fittings on board which could secure it to the ocean bed did not prevent it from coming into the category of a drift net.

The detention order granted by the fourth named respondent was for 48 hours, during which time the catch was offloaded and sold, the proceeds of £16,900 being retained pending the outcome of the prosecution.

The applicant having waived any preliminary examination, he was returned for trial on two charges. The first was that he

"did keep on board the said sea fishing vessel, a drift net prohibited by Article 11 of Council Regulation (EC) No. 894/97 of the 29^th April 1997 as amended by Council Regulation (EC) No. 1239/98 of the 8^th June 1998 and of para. 4 of the Sea Fisheries Drift Net Order, 1998 SI. 267/98 contrary to S223A of the Fisheries (Consolidation) Act, 1959, as amended by the Fisheries (Amendment) Acts 1978, 1983 and 1994."

The second charge was that the applicant

"did use for fishing one or more drift nets prohibited by Article 11 of Council Regulation (EC) 894/97 of 29^th April 1997 as amended by Council Regulation (EC) No. 1239/98 of the 8^th June 1998 and contrary to Article 3 of the Sea Fisheries (Drift Nets) Order 1998 SI 267/89 contrary to S. 223A of the Fisheries (Consolidation) Act 1959 as amended by the Fisheries (Amendment) Acts 1978, 1983 and 1994."

At every stage of these procedures, the solicitor for the applicant objected that there was no jurisdiction to detain the vessel and gear and prosecute the applicant for an offence allegedly committed on the high seas outside the exclusive fishing limits of the State. The vessel was released to the applicant subsequent to the entry by him of bail bonds to secure its release.

The grounds on which the High Court granted leave to apply by way of judicial review for the reliefs ultimately granted can be summarised as follows:

(1) The Sea Fisheries (Drift Nets) Order 1998 (SI.267 of 1998), (hereafter "the 1998 Order") of which the applicant was alleged to be in breach, was ultra vires the powers of the Minister, 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 Minister by S.3(1) of the European Communities Act 1972 as amended.

(2) The 1998 order is ultra vires the powers conferred on the Minister by S.223A of the 1959 Act in purporting to authorise the creation by the Minister of an indictable offence outside the exclusive fisheries limits of the State.

(3) Alternatively, if the said regulations are 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;

(4) Council Regulation (EC) No. 1239/98 (hereafter "the 1998 Council Regulation") is unlawful and invalid as inter alia being contrary to the aims of the common fisheries policy, violating the principles of proportionality and infringing the applicant's legitimate expectation of the right to earn a living by way of drift net fishing and the principle of non-discrimination.

In his judgment, the learned High Court judge found in favour of the applicant on the first and second grounds and it was accordingly unnecessary for him to reach any conclusion as to the constitutionality of S.223A of the 1959 Act or as to whether the 1998 Council Regulation was unlawful and invalid and, accordingly, neither of these grounds was the subject of any submissions to this court.

It should, however, be pointed out that proceedings were instituted in the Court of First Instance of the European Communities in case T-138/98 entitled Armenent Cooperative Artisinal Vendeen (ACAV) and Others –v- The Council of the European Union seeking the setting aside of the 1998 Council Regulation and that members of the Irish Tuna Association, including the applicant, were given leave to intervene in that case. Ireland also intervened in the proceedings and supported the application to set aside the regulation. In its judgment of 22^nd February 2000, the Court of First Instance dismissed the action as inadmissible.

The Regulatory Framework

The 1998 Council Regulation is an EC measure laying down certain technical measures for the conservation of fishery resources. It amended an earlier Regulation (Council Regulation (EC) 894/97.) Articles 11 and 11a provide as follows:

"Article 11

No vessel may keep on board, or use for fishing, one or more drift nets whose individual or total length is more than 2.5 kilometres.

"Article 11a

"1. From 1^st January 2002, no vessel may keep on board, or use for fishing, one or more drift nets intended for the capture of species listed in Annex VIII.

2. From 1^st January 2002, it is prohibited to land species listed in Annex VIII which have been caught in drift nets.

3. Until 31^st December 2001, a vessel may keep on board, or use for fishing, one or more drift nets referred to in paragraph 1 after receiving authorisation from the competent authorities of the flag member state. In 1998, the maximum number of vessels which may be authorised by a member state to keep on board, or use for fishing, one or more drift nets shall not exceed 60% of the fishing vessels which used one or more drift nets during the period 1995 – 1997.

4. Member states shall communicate to the Commission for each target species by 30^th April of each year, the list of vessels authorised to carry out fishing activities using the drift nets referred to in paragraph 3; for 1998, the information shall be sent not later than 31^st July 1998."

One of the species listed in Annex VIII is albacore tuna.

Council Regulation (EEC) No. 2847/93 of 12^th October 1993 (hereafter "the 1993 Council Regulation") is a measure establishing a control system applicable to the common fisheries policy binding on the member states under the provisions of the Treaty of Rome. Article 31 provides that

"1. Member states shall ensure that the appropriate measures be taken, including of (sic) administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where common fisheries policy have not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.

2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of national law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.

3. The sanctions arising from the proceedings mentioned in paragraph 2 may include depending on the gravity of the offence:

Fine,

Seizure of prohibited fishing gear and catches,

Sequestration of the vessel,

Temporary immobilisation of the vessel,

Suspension of the licence,

Withdrawal of the licence."

The relevant provisions of the 1998 Order are as follows:

"I, Michael Woods, Minister for the Marine and Natural Resources, in exercise of the powers conferred on me by S.223A (inserted by S.9 of the Fisheries (Amendment) Act 1978 (No. 18 of 1978)), and amended by S.4 of the Fisheries (Amendment) Act, 1983 (No. 27 of 1983)) of the Fisheries (Consolidation) Act, 1959 (No. 14 of 1959) and the Fisheries (Transfer of Departmental Administration and Ministerial Functions (Order, 1977) (S.I. 30 of 1977) (as adapted by the Marine (Alteration of Name and Department and Title of Minister)) Order 1997 (S.I. No. 301 of 1997)), for the purpose of giving effect to Council Regulation (EC) No. 1239/98 of 8^th June 1998 ["the 1998 Council Regulation"] hereby order as follows:

2. In this order -……

"Drift nets" means a wall of netting used in fishing, which is free to move according to tide and wind conditions.

3(1) Subject to Article 4 of this order, the master of an Irish sea fishing boat shall comply with Articles 11, 11a and 11b of the Council Regulation ["the 1998 Council Regulation"].

(2). Subject to Article 4 of this order, the master, owner, charterer or hirer of an Irish sea fishing boat shall not cause or permit a person on board the boat to fail to comply with Articles 11, 11a or 11b of the Council Regulation.

(3). Subject to Article 5 of this order, the master of a foreign sea fishing boat, in the exclusive fishing limits of the State, shall comply with Articles 11, 11a and 11b of the Council Regulation.

(4) Subject to Article 5 of this order, the master, owner, charterer or hirer of a foreign sea fishing boat shall not cause or permit a person on board the boat, in the exclusive fishery limits of the State, to fail to comply with Articles 11, 11a or 11b of the Council Regulation.

4(1) The holder of an authorisation granted under Article 6 of this order may keep on board an Irish sea fishing boat to which the authorisation relates, or use for fishing from the boat, one or more drift nets whose individual or total length is not more than 2.5 kilometres, intended for the capture of species listed in the Annex, or cause or permit such a boat or any person to keep on board, or use for fishing from the boat, one or more such drift nets, intended for the capture of species listed in the annex.

(2) This Article shall cease to have effect on the 1^st day of January, 2002."

There follows an article entitling the holder of an equivalent authorisation to keep on board a foreign sea fishing boat drift nets of the prescribed length within the exclusive fishery limits of the State, which Article was also to cease to have effect on the 1^st January 2002. Article 6 then goes on to provide for the granting by the Minister of the necessary authorisations and contains ancillary provisions relating thereto.

Finally, Article 7 revokes the Sea Fisheries (International Waters) (Drift Net) Order 1994, (hereafter "the 1994 Order") and the Sea Fisheries (Drift Net) Order 1995 (hereafter "the 1995 Order").

The 1994 Order, which was also made in purported exercise of the powers conferred on the Minister by S.223A of the Fisheries Consolidation Act 1959, provided that the provisions of Article 9a of an earlier Council Regulation (Council Regulation (EEC) No. 3094/86) as amended by Council Regulation (EEC) No. 345/92 of 27^th January, 1992 (2), were thereby prescribed and adopted and that, accordingly, any infringement of Article 9a(1) of the Council Regulation outside the exclusive fishery limits of the State in relation to an Irish fishing vessel or by a person on board an Irish sea fishing vessel, after the commencement of the order was to be an infringement of the order. The articles referred to in the earlier regulations were in similar terms to Article 11(and 11b) of the 1998 Regulation. A drift net was also defined in the same manner as in the 1998 Order.

The 1995 Order again, made in purported exercise of the powers conferred on the Minister by S.223A of the Fisheries Consolidation Act 1959, contained a similar prohibition in respect of any vessels within the exclusive fishery limits of the State.

The Fisheries (Consolidation) Act, 1959, is, as its short title indicates, a consolidating Act which repealed and re-enacted legislation concerned with fisheries stretching back to 1846. As originally enacted in 1959, it contained 21 parts and 335 sections. Only one part – Part XIII containing originally 24 sections – relates exclusively to sea fisheries. Part XIII has been amended from time to time, the first relevant amendment in the context of the present proceedings being the insertion of a new S.223A by S. 9 of the Fisheries (Amendment) Act of 1978 which was as follows:

"223A (1) The Minister may by order prescribe and adopt such measures of conservation of fish stocks and rational exploitation of fisheries as the Minister thinks proper.

(2) A person who contravenes or attempts to contravene an order under this section shall be guilty of an offence.

(3) The Minister may by order revoke or amend an order under this section including an order under this subsection."

The crucial amendment for the purposes of the present proceedings was, however, effected by S.4 of the Fisheries (Amendment) Act 1983 (hereafter "the 1983 Act") which provided that

(1) "Chapter 2 of Part XIII of the [1959 Act] is hereby amended by the substitution of the following subsections for subsection (1) of S223A (inserted by S.9 of the Act of 1978):

"(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

(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,

(iv) generally to fishing boats (including sea fishing boats) or to fishing boats 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 purpose 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 S.301 of this Act,

(c) include such incidental, supplementary and consequential provisions as the Minister considers appropriate, and in case such provisions are included in such an order by virtue of paragraph (b) of this sub section, this Act shall be construed and have effect in accordance with the terms of the order."

By Section 5 of the Act of 1983, Chapter 2 of Part XIII of the 1959 Act was further amended by the insertion of the following section after Section 224A:

"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 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

(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."

The "Act of 1972" referred to in subsection 1 is the European Communities Act 1972.

Section 2 of the Fisheries (Amendment) Act 1978 provides penalties for persons who are guilty of an offence of contravening or attempting to contravene an order under Section 223A. A person guilty of an offence of contravening an order such as the 1998 Order is liable on conviction on indictment to a fine not exceeding £20,000 and to forfeiture, as a statutory consequence of conviction of the offence, of

(a) any fish,

(b) any fishing gear, found either –

(i) on the boat to which the offence relates, or

(ii) in any other place where they may be.

Section 2 of the European Communities Act 1972 (hereafter "the 1972 Act") provides that

"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."

Section 3 provides that

"(1) A Minister of State may make regulations for enabling Section 2 of this Act to have full effect.

(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations 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) Regulations under this section shall not create an indictable offence.

(4) Regulations under this section may be made before the 1^st day of January 1973 but regulations so made shall not come into operation before that day."

Finally, Article 17 of the 1997 Council Regulation should be noted. It provides

"1. Member states may take measures for the conservation and management of stocks:

(a) in the case of strictly local stocks or

(b) in the form of conditions or detailed arrangements designed to limit catches by technical measures

(i) supplementing those laid down in the community legislation on fisheries, or

(ii) going beyond the minimum requirements laid down in the said legislation,

(iii) provided that such measures apply solely to the fishermen of the member state concerned, are compatible with community law, and are in conformity with the common fisheries policy".

The High Court Judgement

The trial judge said that it was clear from the decision of this court in Maher and Others –v- The Minister for Agriculture and Rural Development and Others [2001] 2IR 139 that a community measure could set out the principles and policies being adopted by the communities to such a degree as to obviate the requirement for domestic primary legislation. In such circumstances, the relevant Minister could avail of the power conferred by S.3 of the 1972 Act to give effect to the measure in question. He said that, in the case of the 1998 Council Regulation, there was no suggestion that any area of policy had been left for regulation by the member states or that the 1997 Order purported to address any additional policy considerations or adopt enforcement measures that went beyond anything contemplated in the 1998 Council Regulation. He was also of the view that, while the Fisheries Acts, 1959 – 1994 contained many principles and policies, they did not contain the principles and policies of the 1998 Council Regulation. He accordingly concluded that the 1998 Order did not give effect to principles and policies of the Fisheries Acts 1959 – 1994, but "constituted a completely new addition thereto."

He was also satisfied that the Oireachtas in enacting S.223A of the 1959 Act had not intended to authorise the creation of an indictable offence by a statutory instrument giving effect to a European Community measure, thereby bypassing the prohibition on so doing under Section 3(3) of the 1972 Act.

The trial judge was also of the view that the 1998 Order did not expressly prohibit any infringement of Article 11 of the 1998 Regulation

outside the exclusive fishery limits of the State. He said that, if criminal liability was to be imposed for such an infringement, it could only be done so expressly and unambiguously, and that the Order was also invalid on that ground.

Submissions of the Parties

On behalf of the respondents, Mr. Brian Murray SC accepted that, having regard to the decisions of this court in Cityview Press –v- An Chomhairle Oiliuna [1980] IR 301, the validity of the 1998 Order depended on whether it did no more than give effect to principles and policies contained in a parent statute. In the present case, those principles and policies were to be found, not in the 1998 Order, but in S.223A of the 1959 Act, which entitled the Minister to adopt measures of conservation of fish stocks and of rational exploitations of fisheries, which measures in turn were to be found inter alia in the 1998 Council Regulation.

Mr. Murray submitted that, in holding that the 1998 Order did not give effect to principles and policies of the Fisheries Acts themselves, but constituted a new addition thereto, the trial judge had adopted an unduly narrow construction of the relevant test: the principles to which the Order was to give effect were the conservation of fish stocks and the rational exploitation of fisheries which, of necessity, could only be implemented by reference to the common fisheries policy of the EC.

Mr. Murray further submitted that the trial judge was in error in inferring, as he appeared to have done, from the terms of S.3 of the 1972 Act that the only way in which an indictable offence could be created for the purpose of giving effect to EC measures was by the enactment of primary legislation. There was no reason in principle why regulations could not be made under primary legislation, rather than under S.3 of the 1972 Act, for the purpose of giving effect to the State's obligation to implement community law. He said that it was clear from the terms of Article 31 of the 1993 Council Regulation that any sanction for the breach of the relevant regulation would have to be commensurate with the seriousness of the infringement and this inevitably meant, in this jurisdiction, the creation of an indictable offence.

Mr. Murray further submitted that the invocation by the Minister of S.223A(1) of the 1959 Act was in accordance with the law as laid down by this court in Maher, since in so doing he was adopting measures for the purpose of giving effect to a community regulation which was directly applicable in Irish law.

Mr. Murray further submitted that, if as argued on behalf of the applicant, S.223A could not be availed of by the Minister to make the 1998 Order the question inevitably arose as to what the purpose was of the Oireachtas in empowering the Minister to adopt and prescribe measures in the case of sea fisheries for the stated purposes. The section in that form had been enacted by the Oireachtas in 1983 at a stage, when, with insignificant exceptions, the determination of policy in those areas was within the exclusive competence of the EC.

Mr. Murray further submitted that the trial judge was in error in supposing that it was not within the jurisdiction of the Oireachtas to create an indictable offence on the high seas outside the exclusive fishery limits of the State. It was clear that, in Irish law, civil and criminal jurisdiction extended to Irish registered vessels whether they were within the jurisdiction of the State or not.

On behalf of the applicant, Mr. Hogan SC submitted that the nature in law of the 1998 Order was not in doubt: it was an attempt to give effect by means of delegated legislation to the principles and policies contained in the 1998 Council Regulation. While a Minister in his particular area of responsibility was undoubtedly entitled to give effect to principles and policies which had never been enacted by the Oireachtas but were contained in an EC measure, that could only be done by invoking the powers conferred on ministers by S.3 of the 1972 Act. Where a Minister availed of those powers, as he could have done in this case, he was precluded from including in the instrument a provision for the creation of an indictable offence. That was clearly intended by the Oireachtas as an important limitation on the power of ministers to give effect by delegated legislation to EC measures and they could not have envisaged that a Minister would circumvent that prohibition by purporting to make the order under other legislation which contained no indication that it was intended to be used for the purpose of giving effect to EC measures.

Mr. Hogan submitted that this was reinforced by the difference in wording between S.223A and 224B of the 1959 Act, which had both been inserted by the Act of 1983. Where the Oireachtas wished to create an indictable offence for the breach of EC measures within the exclusive fishery limits of the State, the Minister had been expressly given power to make such regulations for the purpose of giving effect to those EC measures and this was stated to be "without prejudice to the generality of S.3(1) of the Act of 1972". The suggestion that the Oireachtas had enacted a similar provision for giving effect to EC measures outside the exclusive fishery limits of the State by enacting S.223A was wholly implausible.

Mr. Hogan further submitted that it did not follow that, because S.223A of the 1959 Act did not empower the Minister to make the 1998 Order, it was in some sense otiose. In the first place, while the jurisdiction of the EC as to fisheries was confined to the maritime waters of the community, S.223A was not confined to sea fisheries: it also applied to the conservation and rational exploitation of inland fisheries in respect of which the EC had no jurisdiction. In any event, the terms of Article 17 of the 1997 Council Regulation made it clear that member states retained a limited jurisdiction in respect of conservation and management measures applicable solely to the fishermen of the member state concerned.

Conclusions

It is accepted in this case that the 1998 Council Regulation, which prohibits the use by vessels of any of the member states, either within their exclusive fishery limits or on the high seas, of drift nets exceeding 12.5 kilometres in length for the purpose of catching albacore tuna is directly applicable in the State to the same extent as if it were an Act of the Oireachtas. As is normally the case with EC measures, it is left to the member states to provide for the effective policing of the measure in question in whatever is the appropriate manner having regard to the laws of the Member State concerned. 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. It is clear from the decisions of this court in Meagher –v- Minister for Agriculture and Food [1994] 1IR 329 and Maher –v Minister for Agriculture and Rural Development and Others that the fact that, in such cases, the principles and policies to which the regulation gives effect are not to be found in any Act of the Oireachtas, but rather in the community measure concerned, does not affect its constitutional validity. It is beyond argument at this stage that the law as laid down by this court in Cityview Press Limited –v- An Chomhairle Oiliuna, 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, is not applicable to regulations intended to give effect, by virtue of S.3 of the 1972 Act, to EC measures such as the 1998 Council Regulation. There is, however, one crucial qualification to that general statement of the law, namely, that any such regulation cannot create an indictable offence.

It is clear, in this case, that the 1998 Order was intended to give effect to the principles and policies as to the conservation of fishery resources adopted by the Council in Council Regulation 1998. 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), since the 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.

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 legislation. It was 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 unambiguously clear: the Minister while purportedly invoking powers conferred on him by S.223A of the 1998 Act says in express terms that this is being done

"for the purpose of giving effect to Council Regulation (EC) No. 1239/98".

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 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 subsection (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.

That conclusion is reinforced when one considers the terms of S.224(B) of the 1959 Act 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 Minister by regulation to give effect on the high seas to measures of the EC 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 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 Minister by virtue of S.223A.

While there was some discussion in the course of the written and oral submissions as to whether the creation of an indictable offence was "necessitated" by the obligations of our membership of the communities within the meaning of Article 29.4.5 of the Constitution, having regard to the provisions of Article 31 of the 1993 Council Regulation, it seems to me that that issue does not arise in this case. Either the 1993 Order was intra vires S.223A of the 1997 or it was not. If it was within the power of the Minister to make such a regulation for the reasons advanced on his behalf in the High Court and this court, it is not material whether the making of the regulation in that form was "necessitated" by the obligations of the State as a member of the communities. If, on the other hand, the order was ultra vires S.223A and could only have been validly made by the Minister under S.3 of the 1972 Act, it follows that it was of no effect and it is again unnecessary to consider the issue as to whether it was "necessitated" in constitutional terms by our membership of the communities. For the reasons I have given, I am satisfied that the making of the order was ultra vires S.223A of the 1959 Act.

That finding is sufficient to dispose of this appeal. I do not think it is necessary, in these circumstances, to come to any conclusion on the further submission advanced on behalf of the applicant that, in any event, since the 1998 Order did not, as it was contended, expressly provide for the creation of an indictable offence in respect of contraventions of the 1998 Council Regulation committed outside the exclusive fishery limits of the State, it should not be construed as creating such an offence.

I would dismiss the appeal and affirm the judgment and order of the High Court.

THE SUPREME COURT

Keane C.J. No. 139 of 2002

Denham J.

Murray J.

McGuinness J.

Hardiman J.

BETWEEN/

VINCENT BROWNE

Applicant/Respondent

and THE ATTORNEY GENERAL, THE MINISTER FOR MARINE AND NATURAL RESOURCES, IRELAND and JUDGE JAMES O'CONNOR

Respondents/Appellants

Judgment of Denham J. delivered on the 16^th day of July, 2003.

1. Issue

The issue in this case is whether the Minister for Marine and Natural Resources, hereafter referred to as the Minister, has the power to create the indictable offence purportedly made in the Sea Fisheries (Driftnets) Order, 1998 (S.I. No. 267 of 1998), hereinafter referred to as the order, or whether the Minister acted in excess of his power. I am satisfied that the Minister had no power under s. 223 A of the Fisheries (Consolidation) Act, 1959, as amended, to create the purported indictable offence.

The issue of the power of the Minister arises in the circumstances of the implementation of the law of the European Union in Ireland. The issue has arisen as a preliminary matter to a criminal trial.

2. Appeal

This is an appeal against the order of the High Court (Kearns J.) made on the 6^th March, 2002 and perfected on the 8^th of May, 2002. The Attorney General, the Minister and Ireland (hereinafter referred to collectively as the respondents) have brought this appeal and they seek to set aside the judgment and order of the High Court and in their place obtain an order refusing the relief claimed by Vincent Browne, the applicant/respondent (hereinafter referred to as the applicant).

3. Circumstances

The issue arises in the following circumstances. The applicant, who is the Master of an Irish registered fishing boat, the MFV Antonia, faces charges in the Circuit Criminal Court. On the 15^th day of June, 2000 he left Dingle, Co. Kerry, to fish for tuna, for which he had a permit issued by a Sea Fisheries Office pursuant to the provisions of the Sean Fisheries (Driftnets) Order 1998. He deposed that he sailed with 2.5 kilometres of driftnet and approximately 4 kilometres of gill net. He deposed that he did not believe the gill net was a driftnet under the European Regulations. The MFV Antonia travelled some 400 miles from Dingle in a south westerly direction and ended up fishing on the night of 18^th June, 2000 in an area some 190 miles outside of the 200 mile exclusive fishery limit of the State. The applicant fished for tuna on the 18^th, 19^th, 20^th, 21^st, 22^nd and 23^rd June, 2000. On the 24^th June, 2000 his sea fishing boat was boarded by a boarding party from the Irish naval vessel L.E. Deirdre and his fishing nets were inspected. The two nets were measured at 2.545 kilometres and 4.554 kilometres. The applicant was cautioned that he was being detained for the offence of keeping on board, or using for fishing, one or more drift-nets whose individual or total length was more than 2.5 kilometres contrary to article 11 of the Council Regulation (E.C.) 1239/98 amending Council Regulation (E.C.) 894/97. The applicant indicated that he understood the cautions. Both the applicant's boat and the naval boat sailed to Castletownbere arriving on 26^th June, 2000. On arrival the applicant was met by a Garda and two Sea Fisheries Officers of the Department of the Marine. The applicant's boat was then detained on suspicion of having committed an offence pursuant to s. 223A of the Fisheries (Consolidation) Act, 1959, as amended. On application, the District Court in Macroom granted a detention order of 48 hours during which time the fish was off loaded and sold, the proceeds amounting to £16,900.00 being retained pending the prosecution.

The applicant was arrested and charged with the offences set out in Castletownbere charge sheets 27 and 28 of 2000. Sheet 27 charged that the applicant between the 18^th and the 24^th June, 2000 being the Master of the Irish registered sea fishing vessel MFV Antonia did use for fishing one or more driftnets prohibited by Article 11 of 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 and contrary to Article 3 of the Sea Fisheries (Driftnets) Order, 1998 (S.I. No. 267 of 1998), contrary to s. 223A of the Fisheries (Consolidation) Act, 1959 as amended by the Fisheries (Amendment) Acts, 1978, 1983 and 1994. Sheet 28 charged that the applicant did keep on board the sea fishing vessel a driftnet prohibited by Article 11 of Council Regulation (E.C.) No. 894/97 of the 29 April, 1997 as amended by Council Regulation (E.C.) No. 123/98 of the 8^th June, 1998 and of paragraph 4 of the Sea Fisheries (Driftnets) Order, 1998 (S.I. No. 267 of 1998), contrary to s. 223 of the Fisheries (Consolidation) Act, 1959, as amended by the Fisheries (Amendment) Acts 1978, 1983 and 1994.

The applicant pleaded not guilty to the charges. On a 'without prejudice' basis the applicant waived preliminary examination and consented to return for trial to the Circuit Court and indicated that he would be seeking judicial review. The matter has been adjourned by Cork Circuit (Criminal) Court.

The High Court granted leave to apply for judicial review on the 19^th December, 2000 on a number of grounds. In his grounding affidavit the applicant deposed:

"32. I say that I am advised by my legal advisors and believe that the first named respondent herein has not implemented the European Council Regulations in accordance with the 1972 European Community Act as amended, or in accordance with the Constitution and that the said Statutory Instrument made by the second named [respondent] was made ultra vires …"

4. The High Court Order

The High Court granted an order of prohibition directed to the first named respondent prohibiting him from prosecuting the applicant in the Cork Circuit Criminal Court on the charges preferred against him in the said charge sheets. The High Court ordered that the reliefs set out in paragraphs 6 and 7 of the motion are declared ultra vires. These reliefs are

"6. A declaration that the Sea Fisheries (Driftnet) Order 1998 (S.I. 267 of 1998) is ultra vires the powers of the third named respondent herein and contrary to the European Communities Act, 1972 as amended and/or contrary to section 5 of the Fisheries (Amendment) Act, 1983.

7. A declaration that the Sea Fisheries (Driftnet) Order 1998 (S.I. 267 of 1998) is ultra vires the powers of the third named respondent herein pursuant to section 223A of the Fisheries (Consolidation) Act, 1959 as inserted by section 4 of the Fisheries (Amendment) Act, 1983 or alternatively the said section is invalid having regard to the provisions of the Constitution and in particular Article 15 thereof."

The High Court refused to refer the matter under Article 234 of the Treaty of the European Communities to the Court of Justice of the European Communities for the purpose of getting declarations. The High Court adjourned the issue of damages.

5. The High Court Judgment

The learned High Court judge held as follows. (a) Unlike the Maher v. Minister for Agriculture, Food and Rural Development [2001] 2 IR 139 case, s. 3 of the European Communities Act, 1972 was not availed of for the transposition. Instead the Fisheries (Consolidation) Act, 1959 was the chosen vehicle. (b) The respondents did not show that the Minister had legal authority by reference to the wording of the Fisheries Acts to make the order and accordingly must be held to have acted ultra vires as to the mode of implementation of the EC Regulation. The High Court judge was satisfied that in the Fisheries Acts the Oireachtas was not intending to delegate to the Minister a power to implement any measure of EU Law from whatever treaty source arising or to delegate a power creating an alternative but silent EU power of implementation. He held that it could not be said that the Oireachtas had implicitly authorised a by-pass of existing methods by which the Minister might have properly sought to implement any such European obligation. He held that it was the clear implication to be drawn from s. 3(3) of the European Communities Act, 1972 that primary legislation is required where it is intended to create an indictable offence. Further, that the order does not expressly prescribe that an infringement of Article 11 of the Council Regulation outside the exclusive fishery limits of the State is an offence, in contrast to the earlier order S.I. 201 of 1994.

6. Grounds of Appeal

The respondents filed the following grounds of appeal and submitted that the learned High Court Judge erred in:

1. Finding that, by making the Sea Fisheries (Driftnets) Order 1998, the second named respondent violated Article 15.2.1( of the Constitution of Ireland.

2. Finding that, by making the Sea Fisheries (Driftnets) Order 1998, the second named respondent acted ultra vires.

3. Failing to find that Council Regulation (EC) No. 894/97 of April 29^th 1997, laying down certain technical measures for the conservation of fishery resources, as amended by Council Regulation (EC) No. 1239/98 of June 8^th 1998, is directly applicable in the State and, as such, is part of its domestic law.

4. Failing to find that Council Regulation (EC) No. 894/97 of April 29^th 1997, laying down certain technical measures for the conservation of fishery resources, as amended by Council Regulation (EC) No. 1239/98 of June 8^th 1998, is an instrument capable of setting out policies and principles for secondary legislation.

5. Failing to take any account of the fact that the Sea Fisheries (Driftnets) Order 1998 was made for the purpose of giving effect to Council Regulation (EC) No. 894/97 of April 29^th 1997, laying down certain technical measures for the conservation of fishery resources, as amended by Council Regulation (EC) No. 1239/98 of June 8^th 1998.

6. Failing to find that the principles and policies grounding the Sea Fisheries (Driftnets) Order 1998 are contained in Council Regulation (EC) No. 894/97 of April 29^th 1997, laying down certain technical measures for the conservation of fishery resources, as amended by Council Regulation (EC) No. 1239/98 of June 8^th 1998.

7. Finding that the principles and policies grounding the Sea Fisheries (Driftnets) Order 1998 were to be found in the Fisheries Act 1959-1994.

8. Finding that the adoption of the Sea Fisheries (Driftnets) Order 1998 did not satisfy the principles and policies test for delegated legislation.

9. Finding that section 223A of the Fisheries Acts 1959-1994 did not give the second named respondent power to make the Sea Fisheries (Driftnets) Order 1998.

10. Failing to find that section 223A(1) of the Fisheries Acts 1959-1994 expressly permits the second named respondent to adopt measures for the conservation of fish stocks and measures for the rational exploitation of fisheries.

11. Finding that the second named respondent was required to make the Sea Fisheries (Driftnets) Order 1998 by means other than an order made under and by virtue of the powers given to him by section 223A of the Fisheries Acts 1959-1994.

12. Notwithstanding the enactment of the Fisheries (Amendment) Act 1978, finding that section 3 of the European Communities Act 1972 requires the third named respondent to enact primary legislation in order to create an indictable offence.

13. Failing to hold that the Sea Fisheries (Driftnets) Order 1998 was necessitated by the obligations of membership of the Community insofar as the third named respondent is required to bring proceedings against natural or legal persons responsible for a failure to respect the provisions of the common fisheries policy that are capable of effectively depriving those persons of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements and effectively discouraging further such offences.

14. Finding that the Sea Fisheries (Driftnets) Order 1998 did not apply to offences committed on board an Irish registered sea-fishing boat.

15. Finding that the Sea Fisheries (Driftnets) Order 1998 prohibited acts committed within the territorial seas and/or the exclusive fishery limits of the State only.

16. Finding that the Sea Fisheries (Driftnets) Order 1998 is an ambiguous provision imposing criminal liability to trial, conviction and punishment by means of interpretation only.

17. Finding that the Sea Fisheries (Drift-nets) Order 1998 offends Article 15.2.1 of the Constitution of Ireland.

18. Finding that the Sea Fisheries (Driftnets) Order 1998 offends Article 6 of the Constitution of Ireland.

19. Finding that the Sea Fisheries (Driftnets) Order 1998 disapplies or repeals section 4 of the European Communities Act 1972.

When oral submissions were made to the Court it was stated that the 'necessitated' by the obligations of membership of the community argument was not being advanced.

7. Community Law

The European Community has taken conservation measures as part of the common fisheries policy, this includes restrictions on driftnets. In regulations the Council has expressed jurisdiction over all waters falling within the sovereignty or jurisdiction of Member States. Outside those waters jurisdiction is expressed over all community fishing boats, even on the High Seas.

7.1. Council Regulation (E.E.C.) No. 2847/93

Council Regulation (E.E.C.) No. 2847/93 of 12 October 1993 established a conservation control system, as part of the common fisheries policy. In the recitals it provided that to ensure all catches and landings are kept under surveillance member states must monitor in all maritime waters the activities of community vessels. It was further recited that the absence of dissuasive sanctions in certain member states reduced the effectiveness of controls, that member states should take all the necessary non-discriminatory measures to guard against and prosecute irregularities, particularly by establishing a roster of sanctions which effectively deprive the wrong-doers of the commercial gain resulting from their infringements. It was provided that to ensure compliance with the rules of the Common Fishery Policy a community system was thereby established including provision for conservation and resource management. Article 1.3 provided that the system shall apply to all fishing activities carried out in the maritime waters of the member states. It provided also that it shall apply to the activity of community fishing vessels which operate in the waters of non-member countries and on the high seas. Article 2.3 provides that each member state shall monitor outside the community fishing zone the activities of its vessels and cases where such control is required to ensure compliance with community rules applicable in those waters. Title VIII relates to measures to be taken in the case of non-compliance.

Article 31 provides:

"1. Member States shall ensure that the appropriate measures be taken, including of administrative action or criminal proceedings in conformity with their national law, against the natural or legal persons responsible where common fisheries policy have not been respected, in particular following a monitoring or inspection carried out pursuant to this Regulation.

2. The proceedings initiated pursuant to paragraph 1 shall be capable, in accordance with the relevant provisions of national law, of effectively depriving those responsible of the economic benefit of the infringements or of producing results proportionate to the seriousness of such infringements, effectively discouraging further offences of the same kind.

3. The sanctions arising from the proceedings mentioned in paragraph 2 may include depending on the gravity of the offence:

- fines,

- seizure of prohibited fishing gear and catches,

- sequestration of the vessel,

- temporary immobilisation of the vessel,

- suspension of the licence,

- withdrawal of the licence."

For the purpose of this case, it is noteworthy that there is no reference to an indictable offence. While this is understandable in the context of EU Law it is an important factor when considering the Irish law and Constitution.

As to an infringement, Article 32 states:

"1. Where an infringement of the provisions of this Regulation is discovered by the competent authorities of the Member State of landing or transhipment, those competent authorities shall take appropriate action in accordance with Article 31 against the master of the vessel involved or against any other person responsible for the infringement."

Thus the "appropriate action" is to be considered to be in accordance with Article 31.

1. 2. Council Regulation (E.C.) No. 894/97

Council Regulation (E.C.) No. 894/97 of 29 April 1997 codified certain technical measures for the conservation of fishery resources by, amongst other measures, specifying mesh sizes of fishing nets as well as establishing limitations on fishing in certain areas. Reference was made to U.N. Resolution 44/225, and to the U.N. Convention on the Law of the Sea which requires all Members of the International Community to cooperate in the conservation and management of the living resources of the sea, reciting that it was desirable to regulate fishing with driftnets. The regulation applied to the taking and landing of fishery resources occurring in all maritime waters under the sovereignty or jurisdiction of the member states except as provided in Article 6 (1) (b), Article 10 (17) and Article 11 (3).

2. 3. Council Regulation (E.C.) No. 1239/98

The Common Fishery Policy was further developed in Council Regulation (E.C.) No. 1239/98 of 8 June, 1998, which amended Regulation (E.C.) No. 894/97. Reference was made to Council Regulation (E.E.C.) No. 3760/92 of 20 December 1992 establishing a community system for fisheries and aquaculture and to requiring the Council to establish conservation measures necessary to ensure rational and responsible exploitation of living marine resources, for which purposes the Council may adopt technical measures regarding fishing gear. Referring to Regulation (E.C.) No. 894/97 which regulated fishing with driftnets, the rapid increase in their use and that uncontrolled expansion could present grave risk of excessive increase in fishing, in accordance with the communities international obligations to contribute towards the conservation and management of the biological resources of the oceans, it was recited that it was necessary to regulate strictly any expansion of driftnet fishing by community vessels, and it was recited that restrictions on the length of driftnets are required, Article 11 of Regulation (E.C.) No. 894/97 was replace by the following:

"Article 11

No vessel may keep on board, or use for fishing, one or more drift-nets whose individual or total length is more than 2.5 kilometres.

Article 11a

1. From January 2002, no vessel may keep on board, or use for fishing, one or more drift-nets intended for the capture of species listed in Annex VIII.

…

3. Until 31 December 2001, a vessel may keep on board, or use for fishing, one or more drift-nets referred to in paragraph 1 after receiving authorisation from the competent authorities of the flag Member State. In 1998, the maximum number of vessels which may be authorised by a Member State to keep on board, or use for fishing, one or more drift-nets shall not exceed 60% of the fishing vessels which used one or more drift-nets during the period 1995 to 1997.

…

Article 11c

With the exception of waters covered by Council Regulation (E.C.) No. 88/98 of 18 December 1997 laying down certain technical measures for the conservation of fishery resources in the waters of the Baltic Sea, the Belts and the Sound and notwithstanding Article 1(1), Articles 11, 11a and 11b shall apply in all waters falling within the sovereignty of jurisdiction of the Member States and, outside those waters shall apply to all Community fishing vessels.

It was provided in Article 11 (b):

"6. In the case of failure to comply with the obligations laid down in Article 11 and 11a and this Article, the competent authorities shall take appropriate measures in respect of the vessels concerned, in accordance with Article 31 of the Regulation (E.E.C.) No. 2847/93."

The regulation further provided in Article 2:

"It shall apply from 1 July 1998.

This regulation shall be binding in its entirety and directly applicable in all Member States."

3. Irish Legislation
4. 1. The Parent Act

The Parent Act, the legislative base submitted by the respondents for the delegated legislation, is the Fisheries (Consolidation) Act, 1959, as amended. In this Act principles and policies were laid down by the legislature as to fishing. It is a comprehensive consolidating Act. I shall consider it first as of 1959, which was long before Ireland joined the European Community or the Common Fisheries Policy was established, and then shall refer to the current relevant, amended sections.

The Fisheries (Consolidation) Act, 1959 is, as the long title described, an act to consolidate the Fisheries Acts 1842 to 1958 and certain other enactments relating to fisheries. It was a long Act, 335 sections and 6 schedules. Part I is preliminary and general. It has an extensive definitions section. Part II sets out miscellaneous powers and duties of the Minister. It relates to tidal waters. Under s. 9 the Minster may make byelaws, including those for relevant nets, defining the boundary of the mouth of a river. The Minister was given authority to grant special local licences and fish culture licences. Part III of the Act of 1959 set up fishing districts and electoral divisions. For example, district number 1, Dublin district, comprises (a) the whole of the sea and the tideway along the coast between the following points, vis., the most easterly point on Red Island, Skerries, County Dublin and Wicklow Head, County Wicklow and around any islands or rocks off the coast between the said points, and (b) the whole of the several rivers, lakes and their tributaries flowing into the tideway between the said points, and the land drained thereby. Part IV makes provision for boards of conservators for the fishing districts. Pursuant to Part V, every board of conservators had each year to strike on all fisheries within its district a rate sufficient to meet the estimated expenditure of the board for that District for that year. Part VI established laws as to licences for fishing for salmon, trout and eel, licences for fishing in special tidal waters and licences for fishing for trout with rod and line in certain waters. Part VI made regulations as to nets. Specific regulations were made as to nets for salmon on any part of the coast or within any bay, estuary or tideway, or at the mouths of rivers. Part VIII makes provisions in relation to fixed engines, fishing weirs, fishing mill dams and other obstructions to the passage of fish. Part IX sets out restrictions as to times of fishing for salmon, trout, pollen and eels and ancillary provisions. Part X provides for the provision of a salmon dealers licence and salmon exporters licence. A variety of miscellaneous matters, including prohibitions on certain methods of fishing for salmon, protection of fishing waters from poisoning and pollution, protection of young and breeding fish, protection of private fisheries, are set out in Part XI. Part XII provides for the transfer to the Minister of certain tidal waters, weir and mill dam fisheries, amongst other matters.

Part XIII makes provision for sea fisheries, which is relevant to this case. There are a number of definitions, relating to expressions such as 'the exclusive fishery limits of the State', 'fishing gear', 'foreign sea fishing boat', 'Irish sea fishing boat', 'master', 'net', 'sea fish.' Chapter 2 of this part contains provisions relevant to exclusive fishing limits of the sea; it prohibits any foreign sea fishing boat to enter within the exclusive fishery limits of the State, with a few exceptions. Breach of s. 221 (1) created an offence. Section 223 of the Act originally provided in 1959:

"(1) The Minister may from time to time by bye-law prohibit (at the option of the Minister either, as may be specified in such bye-law, absolutely or unless such conditions as the Minister thinks fit to insert in such bye-law are complied with) the use, within the waters of any specified area (being an area within the exclusive fishery limits of the State), in or from either, as may be specified in such bye-law, any boat or any boat of a specified class, of any method of trawling or seining (including fishing by means of any kind of net hauled along the bottom of the sea whether by a moving boat or by any mechanical appliance in an anchored boat), and different bye-laws may be made in respect of any different classes of boats and different methods of fishing" (the emphasis has been added).

A summary offence was established for breach of any bye-law made under s. 223. This section has been repealed and amended.

Originally s. 224 provided that if any sea fishing boat to which Part IV of the Merchant Shipping Act, 1894 applies is found within the exclusive fishing limits of the State without having on board the official papers issued in pursuance of the Act in respect of such boat, or any other boat was found within the exclusive fishing limits of the State without having on board official papers evidencing the nationality of such boat, the master of such boat shall be guilty of an offence.

Chapter III of this part contains provisions relating to under sized sea fish. The Minister was given authority to declare any specific kind of sea fish under sized.

Section 226 made restrictions as to nets on sea fishing boats. It provided:

"(1) The Minister may, whenever and so often as he thinks fit, by order declare it to be unlawful to carry, on board any Irish sea-fishing boat in a specified area or on board any other sea-fishing boat in so much (if any) of that area as is within the exclusive fishery limits of the State, any net for sea-fishing which is not constructed in such manner and has not a mesh of at least such size as may be specified in such order."

Further, s. 227 made it an offence to carry on board any Irish sea fishing boat anywhere or on board any other sea fishing boat within the exclusive fishing limits of the State, any device by means of which the mesh of any part of a net then carried on such boat could be obstructed or otherwise in effect diminished. Also, s. 228 made it an offence to have in possession for the purpose of sale, on board any Irish sea-fishing boat anywhere or on board any other sea fishing boat within the exclusive fishing limits of the State, any under sized sea fish. The Minister may by order revoke or amend any order made under this chapter of the Act. Every order made by the Minister shall be published in Iris Oifiguil specifying the date when it comes into force. Section 231 gives every sea fishery protection officer powers of inspection, examination and detention of sea fish and nets, and the right to demand the name and address of specified persons. Chapter 5 of this part introduced provisions relating to the dredging of shell fish by canvas, hide or other material by which under sized fish may be taken or destroyed. Section 238 prohibited the setting in the sea or in the tideway of any estuary any net for the catching of herrings or any trammel net or any drag net or other net in the water. Part XIV relates to oysters. Many provisions in this section relate to the conservation and protection of oysters and oysters beds. Part XV deals with molluscs, other than oysters. Here also there are provisions relating to conservation of molluscs (other than oysters). Part XVI relates to crabs, once again there are conservation provisions. Part XVII contains penalties for miscellaneous offences. Part XVIII provides powers for water keepers, officers and servants of boards of conservators, Garda Siochana and other persons for the enforcement of the Act. Part XIX contains provisions relating to legal proceedings, fines, forfeitures, enquiries and service of documents. Part XX contains miscellaneous provisions. The first schedule to the Act sets out the enactments repealed, from the Fisheries (Amendment) Act, 1842 to the Amendment Act of 1958. The second schedule sets out the fishery districts, electoral divisions and number of conservators of each electoral division. The third schedule makes provision for the accounts of boards of conservators. The fourth schedule sets out the duties (cost) of licences. The fifth schedule relates to bye-laws fixing close seasons for molluscs (other than oysters). The sixth schedule sets out the form of appointment of water keepers under s. 294.

Clearly this Consolidation Act was and is wide ranging. This Parent Act contains clear principles and policies relating to sea fishing. They include principles and policies relating to conservation and rationalisation of fishing. Specifically, policy on nets and undersized fish is clearly stated. Further, Part XIII plainly makes provision for fishing boats in the Irish exclusive fishing zone and for Irish boats outside that zone. This Act has been amended many times since 1959.

I have considered the Parent Act as of 1959 in some detail because it shows that in 1959 the legislature set down clear principles and policies in legislation relating to sea fishing, including conservation and rationalisation. Since then the Act has been amended many times and some of the amendments are relevant to the issue before the Court. This Act has been amended by the legislature since Ireland joined the European Community and the Common Fisheries Policy and these changed circumstances are reflected in the amendments.

5. 2. Section 223

Section 223A(1) of the Parent Act as inserted by s. 9 of the Fisheries (Amendment) Act, 1978, as amended by s. 4 of the Fisheries (Amendment) Act, 1983 is the legislative base submitted by the respondents for the delegated legislation. Section 4 of the Fisheries Amendment Act, 1983 provides:

"4.-(1) Chapter II of Part XIII of the Principal Act is hereby amended by the substitution of the following subsections for subsection (1) of section 223A (inserted by section 9 of the Act of 1978):

'(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,

(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,

(iv) generally to fishing boats (including sea-fishing boats) or to fishing boats 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."

(2) An order under subsection (1) of section 223A (inserted by section 9 of the Act of 1978) of the Principal Act and which immediately before the commencement of this section had neither expired nor been revoked shall be deemed to have been made under the first of the subsections inserted in the said section 223A by subsection (1) of this section and may be revoked or amended as if it had been so made.

8.3. Section 224B

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 Minister 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:

"5.-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 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.

(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."

8.4. European Communities Act, 1972

Under s. 2 of the European Communities Act, 1972 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 the Communities shall be binding on the State and shall be part of the domestic law. Section 3 of that Act provides:

"(1) A Minister of State may make regulations for enabling section 2 of this Act to have full effect.

(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the Minister making the regulations 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) Regulations under this section shall not create an indictable offence.

…"

However, the delegated legislation in issue in this case was not made under the European Communities Act, 1972. It was not the method of implementation chosen by the Minister.

6. The Delegated Legislation, the Order

The delegated legislation in issue is the Sea Fisheries (Driftnets) Order, 1998 (S.I. No. 267 of 1998), referred to as the order. In this order the Minister, stating that it was in exercise of the powers conferred on him by s. 223A (inserted by s. 9 of the Fisheries (Amendment) Act, 1978, amended by s. 4 of the Fisheries (Amendment) Act, 1983) of the Fisheries (Consolidation) Act, 1959, inter alia, for the purpose of giving effect to Council Regulation (E.C.) No. 874/97 of 29 April 1997 as amended by Council Regulation (E.C.) No. 1239/98 of 8^th June, ordered:

"…

3.(1) Subject to Article 4 of this Order, the master of an Irish sea-fishing boat shall comply with Articles 11, 11a and 11b of the Council Regulation.

(2) Subject to Article 4 of this Order, the master, owner, charterer or hirer of an Irish sea-fishing boat shall not cause or permit a person on board the boat to fail to comply with Articles 11, 11a or 11b of the Council Regulation.

(3) Subject to Article 5 of this Order, the master of a foreign sea-fishing boat, in the exclusive fishing limits of the State, shall comply with Articles 11, 11a and 11b of the Council Regulation.

(4) Subject to Article 5 of this Order, the master, owner, charterer or hirer of a foreign sea-fishing boat shall not cause or permit a person on board the boat, in the exclusive fishery limits of the State, to fail to comply with Articles 11, 11a or 11b of the Council Regulation.

4.(1) The holder of an authorisation granted under Article 6 of this Order may, keep on board an Irish sea-fishing boat to which the authorisation relates, or use for fishing from the boat, one or more driftnets whose individual or total length is not more than 2.5 kilometres, intended for the capture of species listed in the Annex, or cause or permit such a boat or any person to keep on board, or use for fishing from the boat, one or more such driftnets intended for the capture of species listed in the Annex.

(2) This Article shall cease to have effect on the 1^st day of January, 2002 …

5.(1) The holder of an authorisation granted for the purposes of Article 11a (3) of the Council Regulation by the competent authority of the flag Member State of the European Community (other than the State) may, in the exclusive fishery limits of the State, keep on board the foreign sea-fishing boat to which the authorisation relates, or use for fishing from the boat, one or more driftnets whose individual or total length is not more than 2.5 kilometres, intended for the capture of species listed in the Annex, or cause or permit such a boat or any person to keep on board, or use for fishing from the boat, one or more such driftnets intended for the capture of species listed in the Annex.

(2) This Article shall cease to have effect on the 1^st day of January, 2002.

6.(1) The Minister may, until the 31^st day of December, 2001, upon the application of any person who is the owner, charterer or hirer of an Irish sea-fishing boat and upon being furnished by the person with any information which the Minister may reasonably require in relation to the application, grant to the person an authorisation (for the purposes of Article 11a (3) of the Council Regulation) authorising the use from the boat of one or more driftnets, whose individual or total length is not more than 2.5 kilometres, for the capture of species listed in the Annex during such period as may be specified in the authorisation.

(2) An authorisation under this Article shall stand revoked if the holder of the authorisation ceases to be the owner, charterer or hirer of the boat to which the authorisation relates or does not or ceases to hold a licence granted under section 222B (inserted by section 2 of the Fisheries (Amendment) Act, 1983) of the Fisheries (Consolidation) Act, 1959.

(3) An authorisation under this Article shall be subject to -

(a) the conditions specified in Article 11b of the Council Regulation and specified in the authorisation, and

(b) any or all of the following conditions (if any) as the Minister thinks fit and specifies in the authorisation –

(i) restricting the quantity of species listed in the Annex that may be taken, landed or transhipped in a specified period or periods.

(ii) prohibiting the landing or transhipment of species listed in the Annex other than at specified places,

(iii) requiring the master of the boat concerned to keep specified records, in addition to those required by Article 11b (3) of the Council Regulation in relation to the activities of the boat,

(iv) requiring the master of the boat concerned at all times on a request being made in that behalf to permit the boarding and inspection of the boat and inspection of the authorisation and any records kept on board the boat in relation to the boat, whether pursuant to a requirement of the authorisation or otherwise, by a sea fisheries protection officer and the taking of copies of the authorisation or any such records by such an officer.

(v) requiring the keeping of the authorisation on the boat concerned, or

(vi) requiring the surrender of the authorisation by the holder to the Minister or a sea fisheries protection officer upon its expiry or revocation.

(4) The Minister may, if he or she is satisfied that there has been a failure to comply with the condition specified in an authorisation under this Article, revoke the authorisation.

(5) Where an application for an authorisation under this Article is made by a person who has previously held an authorisation that was revoked under this Article by the Minister, the Minster may, if he or she so thinks fit refuse to grant the authorisation to which the application relates.

(6) The Minister may at any time revoke or vary any condition, or insert a new condition, under paragraph (3) (b) of this Article, and the condition as so revoked, varied or inserted shall be regarded as being specified in the authorisation.

(7) Neither a person to whom an authorisation is granted under this Article nor the master of an Irish sea-fishing boat to which such an authorisation relates shall fail to comply with the conditions specified in the authorisation or cause or permit such a failure.

(7) The following are hereby revoked …"

7. Decision
8. 1. Decision: Common Fisheries Policy

Article 3 E of the E.C. Treaty provides that the community's activities shall include a common policy in the sphere of agriculture and fisheries. Article 10 imposes an obligation on members States to take all appropriate measures to ensure fulfilment of the obligations arising out of the Treaty or resulting from action taken by the institutions and to abstain from any measure which might jeopardise the attainment of the Treaties. The community institutions exercise exclusive powers over the common fisheries policy. 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.

10.2. Decision: European Community Act, 1992

The Minister did not use s. 3 (1) of the European Communities Act, 1972 to implement the Council Regulation in issue. S. 3 (1) of that Act is a primary mode for implementing regulations of the community. In such transposition the principles and policies may be found in a Council Regulation or Regulations: Meagher v. Minister for Agriculture [1994] 1 I.R. 329, Maher v. Minister for Agriculture, Food and Rural Development [2001] 2 IR 139. However, if this method of implementing Council Regulations is used then the Minister may not by order create an indictable offence: European Communities Act, 1972, s. 3 (3). This is a clear policy and principle stated by the Oireachtas. Whereas significant powers are given to a Minister of State to make regulations for enabling the implementation of community law this power, to create an indictable offence, was retained by the legislature.

10.3. Decision: Section 224

S. 224 of the Fisheries (Consolidation) Act, 1959 provided for certain offences of sea fishing boats within the exclusive fishery limits of the State, such as not having on board official papers, lights, etc. S. 224A was inserted by s. 10 of the Fisheries (Amendment) Act, 1978. It provided that 'without prejudice to the provision of any other enactment' the Minister may make Regulations for the purpose of carrying out the Convention on the Conduct of Fishing Operations in the North Atlantic made at London on the 17^th day of March, 1967, or any convention amending or replacing that convention. S. 224A (2) provided that a person who contravened a Regulation under this section shall be guilty of an offence and liable on summary conviction to a fine not exceeding £500. Here we see a clear provision made in a Statute by the Oireachtas, providing that the Minister may make Regulations, without prejudice to the provision of any other enactment. A summary procedure is envisaged.

Section 5 of the Fisheries (Amendment) Act, 1983 inserted a new s. 224B to empower the Minister to make Regulations to give effect to matters relating to the European Communities. Section 5 provides:

5. 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 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.

(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."

This is a specific power given to the Minister, expressly stated to be without prejudice to the generality of s. 3 (1) of the Act of 1972, to make regulations and to give effect within the exclusive fishery limits of the State, to any provision of either the treaties or any act adopted by an institution of the European Communities to restrict or regulate fishing in waters of the community. S. 224B (2) mirrors s. 3 (2) of the Act of 1972. Provision is made in sub-section 3 expressly for an indictable crime. Thus, here the legislature expressly created machinery and gave power to the Minister to implement community law by regulation and to create an indictable offence. However, as the power relates only to the exclusive fishery limits of the community it could not be utilised to create an offence on the High Seas, and so could not be the basis for the Minister to implement the Council Regulation in this case.

9. 4 Maritime Jurisdiction Act, 1959

Section 7 of the Maritime Jurisdiction Act, 1959 enabled the Government, having regard to any international agreement to which the State is a party, where it is satisfied that it is necessary to maintain the resources of the sea, by order prescribe and adopt such measure of conservation as they think proper in relation to any stock of fish or other marine resources in any area (a fishery conservation area) of the High Seas adjacent to the exclusive fishery limits. A person who contravenes any provision of any such order shall be guilty of an offence and shall on summary conviction be liable to the penalties provided by s. 223 of the Fisheries (Consolidation) Act, 1959, for an offence under that section.

In this Act the legislature enacted principles and policies relating to conservation on the High Seas and created appropriate offences. The statute is prior to Ireland's accession to the European Community and the Common Fisheries Policy. Thus the legislature even then provided for extra territorial offences relating to conservation, such offences to be established by order, the offence to be summary.

10. 5. Decision: Section 223

The mode of implementation chosen by the Minister for the order in issue was 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) stated to be for the purpose of giving effect to the 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.

The issue for determination is whether the Minister could create an indictable offence by this order or whether he acted ultra vires in so doing. When Ireland joined the European Community the constitution and laws were amended accordingly. Whereas the basic democratic structure of separated powers of government, into executive, judicial and legislative organs, continued in place, in addition new law making powers in the European Community were included in the constitution and the law as part of the shared sovereignty within the European Community. Thus, the Oireachtas was no longer the sole law making authority. However, an important principle of the Community is that the method of implementing Regulations of the Community is a matter for the Member States. On Ireland joining the Community the primary provision for the implementing of Community Law into Ireland was stated to be the European Communities Act, 1972. The principles and policies of the legislature as to the mode of implementation of Community Law are set out clearly in that Act. The Oireachtas in plain and simple language gave to the Ministers of State authority to make regulations enabling s. 2 to have full effect. Further, the legislature (s. 3 (2)) stated the clear principle that such regulations may contain such incidental, supplementary and consequential provisions as appear to the Minister making 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). This is a clear policy. A concern has been expressed of a perceived democratic deficit, that in the arrangements for the implementation of community law in Ireland the legislature has little if any role. This issue has been referred to in previous cases. It is an important part of the fabric of the Constitution of Ireland that the legislature is the law making body in the State. While authority has been given by the State to the community to make law the implementation of such law should be in conformity with the law and the principles of the Constitution. The European Community has also recognised the importance of national public law and leaves it to the State to implement regulations. The result is that when there are clear principles established by the national legislature as to the mode of implementing the law of the European Community such must be applied and inferences may be drawn from both the Constitution and legislation as to the implementation of Regulations.

Thus, the primary legislative provision for implementing Community Regulations, the European Communities Act, 1972, specifically states a principle and policy that regulations made by the Minister enabling the implementation of community law shall not create an indictable offence. It is an important principle of the legislation, it limits the power of the Minister, and the legislature is retaining to itself the power to create indictable offences. Such a principle recognises the significance of indictable offences and that they should be established by the Irish Parliament. This recognition by a member state of its parliament is entirely consistent with Community Law: the method of implementation is for the member state. In such a situation a balance is achieved: the importance of major institutions in the State and in the Community receive appropriate recognition.

Of course the European Communities Act, 1972 is not the only statute setting out procedures empowering a Minister of State to make regulations for implementing Community Law. While it is the primary such statute the Oireachtas may and has legislated in other statutes for modes of implementation. The legislature is not barred from revisiting the issue.

11. 6 Decision: Can the Minister make the order

In view of the special role of the Oireachtas as the law making body under the Constitution, and in view of the expressed policy on the creation of indictable offences in s. 3 (3) of the Act of 1972, any statute purporting to give power to a Minister to create an indictable offence should set out such power in plain and clear language. There should be no ambiguity. In this case the Fishing (Consolidation) Act, 1959 as amended does not express in clear and plain language that the Minister has power to create an indictable offence, in implementing Community Law, on the High Seas. Consequently, I am satisfied that he does not have such authority and that in making the order he acted ultra vires. That decision is sufficient to determine the case.

12. 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 Dail 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."

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.

In Maher v. Minister for Agriculture [2001] 2 IR 139 at page 222 I stated:

"This case is not about any democratic deficit in Ireland. If there is a democratic deficit it should be met prior to the making of the Community regulations. If any such deficit exists it cannot be addressed after the policies and principles have been established by the Community regulations. This is not a case of executive usurping the role of the legislature. Once principles and policies have been established by Community regulations there is no role, certainly no meaningful role, for the national legislature.

The democratic system in Ireland functions through three branches of government. However, in addition, the State is subject to European institutions and provisions made therein. These regulations are directly applicable. These regulations are part of Irish laws as a consequence of Ireland's membership of the European Union. They are part of Irish law without any input from the three branches of government.

The principles and policies in relation to the milk quota were set down in the European provisions. These regulations are directly applicable in Ireland. They set out the principles and policies of the milk quota system. This scheme is a creation of the European Union and an important part of the Common Agriculture Policy and the Common Organisation of the Market. It is quintessentially a market device run from central institutions.

There is no necessity for legislation in the Oireachtas as the principles and policies are established in the Regulations. Indeed, such an enactment might have caused an impediment of the common organisation of the market if it had strayed from the principles and policies in the regulations. Also, such an approach might have created the illusion that there were policies to be decided in the national parliament when in fact they were not. There was no renvoi to the national legislature."

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.

For the reasons given I would dismiss the appeal and affirm the order of the High Court granting an order of prohibition directed to the first named respondent herein prohibiting him from prosecuting the applicant in the Cork Circuit Criminal Court on the charges preferred by him and contained in Castletownbere charge sheets No. 27 and No. 28 of 2000.

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.