SUPREME COURT
50/16
Clarke C.J.
O’Donnell J.
McKechnie J.
MacMenamin J.
Dunne J.
Patrick O’Sullivan and
Cathal O’Sullivan
v
Plaintiffs
The Sea Fisheries Protection Authority and
The Minister for Agriculture Food and the Marine,
Ireland and the Attorney General
Defendants
Judgment of O’Donnell J. delivered the 12th December, 2017.
1 These proceedings concern a direct appeal pursuant to the provisions of Article 34.5.4 of the Constitution from the decision of the High Court (O’Connor J) of the 15th of January 2016, in which the High Court held that the European Union (Common Fisheries Policy)(Point System) Regulations (SI No.3/2014) made by the Minister for Agriculture Food and the Marine on the 8th of January 2014, (and which I will refer to hereafter as “the 2014 Regulations”) contravened principles of Irish constitutional law. On the 2nd of March 2016, having heard submissions from both parties he made an Order declaring that the entirety of the Regulations were invalid having regard to the provisions of Article 15.2.1 of the Constitution which provides that the sole and exclusive power of making laws is vested in the Oireachtas. It should be said at this point, that for reasons I will explain shortly, that Order was made effectively by agreement of the parties, the Court noting in the Order that in the intervening time the 2014 Regulations had been repealed and replaced by SI 125 of 2016, the European Union (Common Fisheries Policy)(Point System) Regulations of 2016 (referred to hereinafter as “the 2016 Regulations”). The case raises important questions as to the interaction between European law and the Constitutional provisions relating to the making of law.
2 In broad, and perhaps overly simple terms, the 2014 Regulations created what was described as a stand alone system for the application of points to licences for the conduct of sea fishing. The Sea Fisheries Protection Authority (“SFPA”) was designated as the competent authority, and where a serious infringement of fisheries rules was detected by a sea fisheries protection officer, the SFPA, having determined that the infringement was indeed “serious” was obliged to propose the assignment of points to the holders of an Irish licence, and notify the holder of the licence of that proposed assignment. Similar and parallel provisions were made for vessels which were licensed in other Member States, to permit such proposed assignment of points to take effect in respect of such licences. The notification to the holder of the licence was also to inform the holder, of an entitlement to appeal within a fixed period of 21 days to an independent appeals officer. If there was no such appeal, or if the appeal was unsuccessful, then the points were applied. In any such appeal, the onus was on the licence holder to show, on the balance of probabilities, that either the incident did not occur, did not involve the vessel, occurred prior to the coming into force of the Regulations, or was not serious. A party to the appeal could in turn apply to the High Court by way of appeal on a point of law and the decision of the High Court on such point of law was deemed to be final and conclusive.
3 It may be noted from even this brief description, that the Regulations of 2014 do not themselves define the infractions which may give rise to the points procedure, or give to the SFPA, or any appeal officer, any discretion as to the amount of points to be applied in respect of any particular matter. Nor do the Regulations set out the consequences of the attachment of points to a licence or provide for the removal of such points. The silence of the Regulations on these matters is indeed just one illustration of the fact that the Regulations of 2014 are a small component of a European Union wide system of fisheries control created by European law intended to apply, and be applied, uniformly across the Member States. Accordingly it is European legislation establishing the system of points which makes provision for all these matters, the full detail of which it is not necessary to elaborate on for the purposes of these proceedings. In brief terms however, a number of matters are specified as impermissible, the most important of which for present purposes is what is described as illegal, unreported and unregulated fishing (“IUU fishing”) in European Union waters. The points to be applied to a licence in respect of each specified infraction once a breach is determined to be serious, is fixed and determined by European Union law. On the accumulation of a certain number of points, a licence is automatically suspended for a period. If more points are accumulated, an increased period of suspension applies, until ultimately, if 90 points are attached to a licence, the licence is removed altogether. If however points are not accumulated in a period of three years from the latest infraction, then all the points are removed, and the clock, as it were, is reset to zero. Importantly, the points attach to the licence, and accordingly pass with the licence on transfer. It is accordingly a process targeted at the licence and the licence holder rather than the Master of the vessel (who traditionally was the focus of enforcement measures), and is designed to be a graduated regime intended to be dissuasive, but which necessarily has as its end point the possibility of removal of a licence. All these matters are fixed by provisions of European law intended to implement the Common Fisheries Policy.
4 As even this brief account shows, and indeed as is evident from their title, the Irish Regulations of 2014 were introduced pursuant to obligations applicable to this jurisdiction by the law of the European Union. It is necessary now to turn to those provisions of European law to place the impugned Regulations of 2014 in their legal context.
5 Under Article 4 of the Treaty on the Functioning of the European Union (“TFEU”) the Union and the Member States share competence in the area of agriculture and fisheries excluding the conservation of marine biological resources. The conservation of such resources under the Common Fisheries Policy is an area of exclusive competence of the Union: Article 3(1)(d) TEEU. On the 29th of November 2008, the European Council adopted Council Regulation (EC) 1005/2008 which recorded at Recital 3 that illegal, unreported and unregulated (“IUU”) fishing was one of the most serious threats to the sustainable exploitation of living aquatic resources, and jeopardised the very foundation of the Common Fisheries Policy. EC Regulation 1005/2008 has been described in these proceedings as the IUU Regulation, and I will adopt this helpful terminology.
6 The IUU Regulation: Council Regulation (EC) No 1005/2008
Recital 2 of the IUU Regulations states that it is essential that the Community adopt dissuasive measures against fishing vessels carrying out IUU fishing. Recital 34 recognises the persistence of a high number of serious infringements against the rules of the Common Fisheries Policy within Community borders, and that such persistence is caused to a large extent by the non-deterrent level of sanctions prescribed within Member States’ legislation in relation to serious infringements. Accordingly, the Regulation introduces a system of European wide sanctions.
7 Article 3 of the Regulations provides that a fishing vessel shall be presumed to be engaged in IUU fishing if it is shown that, contrary to the conservation and management measures applicable in the fishing area concerned, it has done any one of a number of things detailed in 12 subparagraphs running from (a) fishing without a valid licence, to (l) being of no nationality and therefore a Stateless vessel in accordance with International law. Included in the prohibited conduct are concealing, tampering with evidence, or obstructing the work of officials, fishing in a closed area, or using prohibitive or non compliant fishing gear. Article 3 accordingly provides an extensive range of conduct which is prohibited. Article 10 provides for inspection procedure, and Article 11 obliges the Master to cooperate with and assist in such inspections, and to refrain from obstructing, intimidating or interfering with officials carrying out an inspection. Article 11 also provides for a procedure in respect of infringements. The Regulations also provide for publication and dissemination of information and notification to other countries, and ensuring compliance by third countries.
8 Chapter IX of the Regulations, being Articles 41 to 47, contains sanctions described as “immediate enforcement measures, sanctions and accompanying sanctions”. The chapter applies to serious infringements in the waters of Member States, by Community fishing vessels or nationals of Member States. Serious infringements are defined by Article 42. It is noteworthy that a serious infringement includes but is not limited to the activities considered to constitute IUU fishing in accordance with the criteria set out in Article 3. By Article 42(2) the serious character of the infringement is determined by the competent authority of the Member State. This is the first point at which there is any input by the Member State. It is noteworthy however, that even in this regard the range of decision making open to the competent authorities of the Member State is limited, and the criteria for the decision are identified, being the amount of damage done, its value and extent, and the repetition of infringement. Article 43 provides for some significant and serious immediate enforcement measures, such as seizure of catch and equipment, and suspension of authorisation to fish, designed to “prevent the continuance of the serious infringement concerned and to allow the competent authorities to complete its investigation”.
9 Article 44 provides for sanctions for serious infringement and is central to much of the debate in this case. It provides in simple terms for the possibility of administrative or criminal sanctions, or, it appears, both. Thus, Article 44(1) provides that Member States should ensure that natural or legal persons liable for serious infringements are punishable by “effective, proportionate and dissuasive administrative sanctions”. Article 44 (2) and (3) provide that the maximum sanction shall be five times the value of fishery products obtained, and in the case of a repeat of infringement within a five year period, eight times. In applying such sanctions the Member State is to take into account the value of the prejudice to the fishing resources and the marine environment. Article 44(3) provides that Member States may also, or alternatively, use effective proportionate and dissuasive criminal sanctions. It appears to follow from the above, that Member States may choose either administrative or criminal sanctions, or both, but in any case such sanctions must be effective, proportionate and dissuasive. It should be said at this point that the broad enforcement regime applicable in Ireland, in accordance with its legal tradition, is enforcement by criminal proceedings. It follows from the provisions referred to above that this is permitted, but not required, by the IUU Regulation. Article 45 permits of serious accompanying sanctions such as the sequestration of the fishing vessel, the temporary immobilisation of the vessel, confiscation of gear, catches or fishery products, reduction or withdrawal of fishing rights and the temporary or permanent exclusion from the right to obtain new fishing rights. Finally, Article 46 provides that the overall level of sanctions, and accompanying sanctions should be calculated in such a way as to effectively deprive those responsible of the economic benefits derived from the serious infringement.
10 The Control Regulation: Council Regulation (EC) 1224/2009
It will be noted that the IUU Regulations while providing for dissuasive sanctions in the case of serious infringements, including IUU fishing, which can be administrative or criminal, make no reference to a point system. Furthermore, the IUU Regulation is directed primarily at the natural person or legal person operating the boat. In many cases that person may be distinct from the licence holder. In 2009 it was considered appropriate to bolster the enforcement regime by adopting a Community control system for ensuring compliance with the rules of the Common Fisheries Policy, consisting of a points system targeted at the licence and therefore the licenceholder. Council Regulation 1224/2009 was introduced, which has been referred to in these proceedings conveniently as “the Control Regulation”. It is this Regulation which gives rise to the obligation to establish a point system leading to suspension and ultimately withdrawal of a fishing licence which is at issue in this case.
11 Once again the recitals to the Regulation are instructive. Recital 38 provides that nationals from Member States should be deterred from committing infringements of the rules of the Common Fisheries Policy. It records that since actions taken following infringements of the rules differ widely from one Member State to another, causing discrimination and unfair competition, and given the absence of dissuasive, proportionate and effective sanctions in certain Member States, there is a reduction of effectiveness of controls and accordingly it was appropriate to introduce “administrative sanctions in combination with a points system for serious infringements to provide a real deterrent” (emphasis added). Recital 39 provides:
“The persistence of a high number of serious infringements of the rules of the Common Fisheries Policy … is to a large extent attributable to the non-deterrent level of sanctions for serious infringements of those rules laid down in national legislation. That weakness is compounded by the wide discrepancy in the levels of sanctions between Member States, which encourages illegal operators to operate in waters or within the territory of the Member States where the sanctions are lowest. It is therefore appropriate to complement the maximum levels of sanctions for serious infringements of the rules of the Common Fisheries Policy as laid down in Article 44 of [the IUU Regulation] with dissuasive sanctions, taking into account the nature of the damage, value of the fishery products obtained by committing the serious infringement, the economic situation of the offender and any repetition of an infringement. Immediate enforcement measures and complementary measures should also be laid down” (emphasis added).
12 Recital 40 is to similar effect:
“The establishment of sanctions should be complemented by a point system for serious infringements on the basis of which a fishing licence should be suspended if a certain number of points have been attributed to the holder of a fishing licence following the imposition of sanctions for serious infringements” (emphasis added).
It is appropriate to note at this point that the respondents in this case, who are licence holders emphasise the reference in both Recital 39 and 40 to the points system being complementary to the sanction system established pursuant to the IUU Regulations, and it is contemplated that such points system should be attributed to the holder of a/the fishing licence “following the imposition of sanctions for serious infringements”. In essence it is contended that the Control Regulations do not envisage a stand alone points system such as that introduced in Ireland by the 2014 Regulations, but rather contemplates and permits only a system of allocation of points operating in conjunction with, and subsequent to the system of sanctions already in place. In Ireland this would mean that points could only be attributed as part of the criminal enforcement process and after the conviction of the Master of the vessel.
13 The general principles of the Control Regulations are set out at Article 5, subparagraph 3 of which provides:
“Member States shall adopt appropriate measures, allocate adequate financial, human and technical resources and set up all administrative and technical structures necessary for ensuring control, inspection and enforcement of activities carried out within the scope of the Common Fisheries Policy”.
There are accordingly a number of provisions within the Regulation in respect of recording catches, detection of vessels, transmission of information, and shipment operations etc. which while illustrative of the high degree of regulation of the industry, are not particularly relevant to these proceedings. However, under Title 8, “Enforcement”, a number of specific provisions are included. Thus, Article 89(1) provides that Member States shall ensure that appropriate measures are systematically taken, including administrative action or criminal proceedings in conformity with their national law against the natural or legal person suspected of a breach of any of the rules of the Common Fisheries Policy. Article 89(2) provides that the overall level of sanctions and accompanying sanctions shall be calculated in such a way as to make sure they effectively deprive those responsible of the benefit of infringement and thereby effectively discourage further offences of the same kind. Thus, a fine is required to be proportionate to the turnover of the legal person or the financial advantage achieved.
14 Article 90 deals with sanctions for serious infringements. It provides that in addition to Article 42 of the IUU Regulations, three further activities shall be considered serious infringements for the purposes of the Regulation. They are:
“(a) the non-transmission of a landing declaration or a sales note when the landing of the catch has taken place in the port of a third country;
(b) the manipulation of an engine with the aim of increasing its power beyond the maximum continuous engine power according to the engine certificate;
(c) the failure to land any species subject to a quota caught during a fishing operation, unless such landing would be contrary to obligations provided for in the rules of the Common Fisheries Policy in fisheries or fishing zones where such rules apply”.
Article 90(2) provides that Member States shall ensure that the natural person having committed, or a legal person held liable for, a serious infringement is punishable by effective, proportionate and dissuasive administrative sanctions in accordance with a range of sanctions and measures provided for in Chapter IX of the [IUU Regulation]. Article 90 (1) provides that the three identified matters shall be considered serious infringements depending on the gravity of the infringement in question (which shall be determined by the competent authority of the Member State) “taking into account criteria such as the nature of the damage, its value, the economic situation of the offender and the extent of the infringement or its repetition”.
15 It is useful to note in passing here something which is more important in the Crayden Fisheries case [2016] IEHC 30, which was heard together with this appeal. Article 90(1) appears to permit of a determination by the competent authority of the gravity of the infringement, and taking into account in particular the economic situation of the offender. This is in distinction to the provisions of Article 44 of the IUU Regulations which only requires a Member State to take into account the value of the fishing resources and the marine environment concerned, although it should be said that the overall level of sanctions and accompanying sanctions of Article 46 is required to deprive the person of any of the economic benefits of these serious infringements “without prejudice to the legitimate right to exercise a profession”. There is no apparent difference in subject matter between the three matters specified in Article 90(1) at subparagraphs (a), (b) and (c), and those matters which are treated as serious infringements for the purposes of Article 42 of the IUU Regulations, and in particular those matters specified under Article 3 (1) (a) to (l) of the same Regulations. There does not appear to be any particular logical reason therefore for the distinction and none was suggested, but it does appear on a textual analysis at least, that it is only the specific activities treated as serious infringements under Article 90(1) that the Member State is given leeway to consider as serious “depending on .....the economic situation of the offender”. It will be necessary to return to this observation later in this judgment. For present purposes however, it is necessary simply to note that Article 90 deals with sanctions for serious infringements in general, and again requires sanctions which are effectively dissuasive. Article 90(5) provides that “Member States may also, or alternatively, use effective, proportionate and dissuasive criminal sanctions”. These provisions address therefore the question of sanctions and do not themselves make provision for any points system.
Points System
16 It is Article 92 of the Control Regulations which is the source of the obligation to establish a points system which is the subject matter of the 2014, and indeed 2016, Regulations. It provides as follows:
“1. Member States shall apply a point system for serious infringements as referred to in Article 42(1)(a) of Regulation (EC) No 1005/2008 on the basis of which the holder of a fishing licence is assigned the appropriate number of points as a result of an infringement of the rules of the Common Fisheries Policy”.
At this point it is necessary to note that the point system only relates to those serious infringements as referred to at Article42(1)(a) of the IUU Regulations, being therefore, only those matters specified at Article 3(1)(a) to( l) of the same Regulations. This means that the points system applies to IUU fishing as defined under the IUU Regulation rather than the other serious infringements identified under 42(1)(b) and (c) of the Regulations, or indeed the matters also treated as serious infringements pursuant to Article 90 of the Control Regulations. Article 92(2) provides that:
“When a natural person has committed or a legal person is held liable for a serious infringement of the rules of the Common Fisheries Policy, the appropriate number of points shall be assigned to the holder of the fishing licence as a result of the infringement. The points assigned shall be transferred to any future holder of the fishing licence for the fishing vessel concerned where the vessel is sold, transferred or otherwise changes ownership after the date of the infringement. The holder of the fishing licence shall be entitled to review proceedings in accordance with national law”.
17 Article 92(3) provides for suspension of licences for increasing lengths of time as points are accumulated culminating in withdrawal of a licence on a fifth contravention. However, Article 92(4) provides that if the holder of the fishing licence does not commit within three years from the last serious infringement, another serious infringement, all points on the fishing licence shall be deleted. It is perhaps noteworthy at this point, that the Control Regulation does not establish the amount of points to be attributed per infringement, or indeed the amount which should give rise to a first, second, third or fourth suspension, or the permanent withdrawal of the licence. These matters are provided for in the next instrument it is necessary to consider, which is the Regulations introduced by the Commission on the 8th of April 2011, being Commission Implementing Regulation (EC) 404/2011, and which I will refer to as the “Commission Implementing Regulations of 2011”.
The Commission Implementing Regulations of 2011: (EC) 404/2011
18 Once again, these Regulations are very extensive and deal with many more matters other than penalty points. However, Title VII deals with enforcement, and in particular the point system for serious infringements. Article 125 provides the Member State shall designate a competent authority responsible for both the setting up of a system for the attribution of points for serious infringements as referred to in Article 92(1) of the Control Regulation, and the assigning of the appropriate number of points to the holder of a fishing licence. Under Article 126 the number of points for a serious infringement shall be assigned in accordance with Annex XXX to the holder of a fishing licence for the fishing vessel concerned. Article 126(4) provides that the points are assigned to the holder on the date set and the decision assigning them. Member states are obliged to ensure that the application of national rules concerning the suspensory effect of review proceedings do not render the points system ineffective. Article 129 completes another aspect of the picture. It provides that the first, second, third and fourth suspensions are triggered by the accumulation of 18, 36, 54, and 72 points respectively, and Article 129(2) provides that accumulation of 90 points will trigger the automatic permanent withdrawal of the fishing licence.
19 Finally, it is necessary to briefly consider Annex XXX headed “Points to be assigned for serious infringements”. This Annex sets out 12 numbered headings corresponding to the 12 headings set out in Article 3 of the IUU Regulations, deemed serious infringements by Article 42 of the same Regulations, and thus subject to a points system for serious infringements by virtue of the provisions of Article 92 of the Control Regulations. The headings are set out in order of seriousness, and the applicable points run from three points for a breach of Article 3(1)(b) of the IUU Regulations being a non-fulfilment of the obligation to record and monitor catch, to seven points for breaches of paragraph 1(d),(h),(j) or (l) of Article 3 of the IUU Regulations. For completeness it should be said that the total number of points which can be applied in respect of any one incident, is also subject to a maximum of 12. The Regulations are both complex and comprehensive. The Member States are to establish a system for the allocation of points to licences but the only substantive decision to be made by the Member State in any case is whether the infringement is a serious one, and the criteria for that decision are themselves prescribed by Article 3(2) of the IUU Regulations. It was in purported compliance with the obligation imposed by the combination of these Regulations that the Minister for Agriculture Food and Fisheries introduced the Regulations of 2014, and which are challenged in this case.
20 Facts
On Tuesday the 7th of April 2015, the fishing vessel the “Tea Rose” was boarded by two sea fisheries protection officers at Castletownbere in County Cork. Following an inspection and weighing of the fish a member of An Garda Síochána cautioned the Master and took custody of the Tea Rose and its fishing licence. The Master was charged at Bantry District Court with failing to correctly fill in the log book of the operation of the Tea Rose by under-recording its catch of hake, cod, haddock and pollock, in contravention of Articles 5 and 6 of the 2014 Regulations, matters which in themselves would amount to a contravention of Article 3(1)(b) of the IUU Regulations and if determined a serious infringement pursuant to Article 42 of the said Regulation, a matter for which three points are to be assigned for serious infringements pursuant to Annex XXX of the Commission Implementing Regulations. The parties agree that the prosecution of the Master in relation to this offence may take two years to conclude. The applicants here, who are the holders of the licence of the Tea Rose, sought an undertaking that the point process under the 2014 Regulations would not be commenced. The SFPA maintained it had no discretion to refrain from proceeding in accordance with the Regulations once there was notification of the detection of an infringement. These proceedings were commenced. They constitute a root and branch challenge to the validity of the Regulations.
21 The High Court judgment
The High Court judge found that the 2014 Regulations were invalid and contravened Article 15.2.1 of the Constitution. In doing so the judgment did not single out one particular element of the Regulations as beyond the permissible limit of the subordinate legislation, but instead referred to a number of features of the 2014 Regulations and concluded that taken together the effect was to bring the Regulations outside the permissible range of provisions that could be introduced by statutory instrument. At paragraph 54 of the judgment it was said that “the following in particular sets the court on a trail of inquiry as to overall compliance with the Cityview Press [1980] IR 381, test as applied in the Meagher [1994] 1 IR 329 judgments and in the Maher case [2001] 2 IR 139”:
“It is the combination of these issues as opposed to any one single point discussed in this paragraph which leads the Court to its decision about the DPR [ the Regulations of 2014, described in the judgment as the Domestic Points Regulations, or DPR]:-
(a) The limited opportunity under the DPR for the licence holder, if not his exclusion, from access to any typical adjudication process about whether a “serious infringement has occurred”. Licence and permit holders in other sectors in Ireland typically have access to courts for adjudication of alleged wrongdoing if not appeals to a court from an independent adjudicator;
(b) The edifice created by the DPR for the combined investigation, detection and assessment of serious infringements followed by the imposition of penalty points and limited appeal opportunities is new to licensing in Ireland;
(c) The Minister has not explained why traditional processes were not adopted in the DPR. The relevant EU Regulations do not require Member States to abandon established legal order and administration systems;
(d) The Court has not been persuaded that the two year delay for the trial of the alleged offence by the Master should affect the assignation of penalty points to a licence holder if other sanction-like systems used in the State were adopted by the Minister in making the DPR;
(e) The Minister has not sought to explain why potential delays in investigating and determining an alleged serious infringement, in processing any appeal and in attributing penalty points could be avoided by means other than by the novel approach used in the DPR;
(f) Article 10(ii)(c) of the DPR, which requires a licence holder to provide grounds for challenging a determination by the SFPA of a serious infringement, may not be unique in Irish legislation. Nevertheless it is uncommon in Ireland for those licensed to bear a burden which sits uneasily with the principles of constitutional and natural justice that allow those with a profession or trade for example to have allegations of wrongdoing established. The relevant EU Regulations do not require a licence holder to bear the burden of proving that a serious infringement has not occurred. The Minister has not explained why this provision was inserted and the Court cannot find any specific principle or policy in the relevant EU Regulations to justify what may be categorised as minimising the burden to establish a serious infringement;
(g) It may be open to the Oireachtas to introduce legislation which requires a licence holder to bear the burden of disproving a detection of a serious infringement without the usual recourse to a review by a court. However, such a measure, in this Court’s view, tilts the scales in favour of zealous adherence to the stated EU policy for the point system to be effective and dissuasive as against the demands of Article 15.2.1. The Court remains ever conscious of the prerogative of elected members of the Oireachtas to debate and to enact legislation which establishes principles and policies to allow a Minister to adopt new norms such as those set out in the DPR.
(h) The Court was not persuaded by the reference in the relevant EU Regulations to “effective, proportionate and dissuasive administrative sanctions” to justify a novel determination system which could be regarded by licence holders as somewhat skewed against them. The opaqueness associated with the introduction of the relevant novel measures for the sake of effectiveness does not sit well with the requirements of the Constitution, for Ministers when they exercise powers to make secondary legislation pursuant to the Act of 1972.
(i) The fettering of the discretion of the Appeals Officer as described, together with the somewhat limited opportunity to involve the High Court in any determination with the exclusion (coupled with the finality of any High Court decision) is unusual if not unique in the legal framework of the State for licensing. This Court cannot find any principle or policy in the relevant EU Regulations to justify this incursion into what may ordinarily fall within the remit of primary legislation.
(j) Submissions filed by the defendants asserted that making a High Court decision final and conclusive did not require primary legislation. Eleven examples of SIs which so provide were given. The Court notes that those eleven SIs were made in areas in which the Labour Court also had a role and that the Labour Court when those SIs were made was governed by the Industrial Relations Act 1946. Section 17 of that Act provided for finality of a Labour Court’s decision and provides a limitation of the right to appeal based on domestic legislation which was enacted by the Oireachtas. This Court takes the view that the examples cited by the defendants merely show that primary legislation has enabled the making of secondary legislation which limits recourse to the Courts on the basis that the secondary legislation accords with the principles and policies of the enabling legislation. Although the relevant EU Regulations were themselves innovative and demanding, there is no requirement for Member States to limit recourse to the courts on appeal or otherwise.
(k) The Court returns to its earlier observation that the Act of 1972 which the Minister relies upon is of a general nature and is more significantly subjected to the expectations for primary legislation when the EU legislation do not specifically require abandonment of domestic norms”.
22 An application for leave for leapfrog appeal to the Supreme Court pursuant to Article 34.5.4 of the Constitution was made on the 11th of April 2016, and granted by determination issued on the 10th of June the same year. Earlier, on the 26th of January 2016, the High Court (O’Malley J) had delivered judgment on a separate challenge to proceedings brought under the 2014 Regulation: Crayden Fishing Company v Sea Fisheries Protection Authority [2016] IEHC 30. That decision dealt with the narrower issue relating to the fairness of the procedures applied under the Regulations and in particular a contention that the decision of the SFPA that an infringement was serious and proposing the allocation of points was arrived at in breach of natural justice. That argument nevertheless overlapped with part of the decision in this case. O’Malley J in that case quashed the determination on the grounds that the procedures, or lack of them adopted under the Regulations did not accord with fair procedures. In particular there was no right of making representations to the SFPA in the first place, the Authority did not give reasons for its decision and the hearing before the Appeal Officer was limited and an onus was placed on the party challenging the proposed application of points to prove that the event did not occur or did not involve the vessel.
23 The immediate response to these decisions of the High Court, which had been delivered within a very short time period of each other, was to introduce the 2016 Regulations. Since those Regulations are not, and cannot be, challenged in these proceedings, it is not necessary to consider them at length. It is I think sufficient however to observe that the 2016 Regulations addressed most of the issues considered by O’Malley J, and therefore provided for submissions at first instance to a Determination Panel, the provision of reasons by the Panel, and thereafter an appeal to a three person appeal body. However, since the Regulations of 2016 are contained in a statutory instrument made under the 1972 Act it might be said that they do not appear to address the substance of the decision in this case. The High Court here addressed issues of both substance and procedure, and therefore it is not entirely clear that the 2016 Regulations would necessarily be found invalid if the High Court decision in this case is correct, but on the surface certainly, since the 2016 Regulations were also introduced by statutory instrument and not primary legislation, they would appear to share the frailty of the 2014 Regulations identified in this case, if, the essential analysis of the High Court in this case is upheld by this Court. The validity of the 2016 Regulations lies therefore in the background to this appeal.
24 The 2016 Regulations are also relevant to these proceedings because they revoked the 2014 Regulations entirely. It was partly because this had been done that the High Court, when it came to make the formal Order in this case was prepared to make a blanket declaration of invalidity, noting in its Order, the introduction of the 2016 Regulations and revocation of the 2014 Regulations. It is not necessary here to address the question of whether invalid regulations can be revoked, or if revoked regulations can be declared invalid. The important feature of the 2016 Regulations for present purposes is that there was no purported saver in relation to matters occurring or proceedings commenced while the 2014 Regulations were ostensibly in force. Therefore the plaintiffs in this case could not be subject to any points determination under the procedure provided by the 2016 Regulations in respect of the incident which had triggered the proceedings in this case. Furthermore, even if the defendants were to succeed in this case and the decision of the High Court was reversed, that would not mean that the proceedings initiated could be continued since the 2014 Regulations now stand revoked by the 2016 Regulations. I do not wish to make a facile criticism, and I do not underestimate the difficulty of seeking to provide for all possibilities when a decision is under appeal, particularly one that makes findings of unconstitutionality: it is enough here to note simply that no attempt was made in this case to maintain the possibility of prosecuting the proceedings in relation to the plaintiffs in this case in respect of the incident on the 7th of April 2015 in the event that this appeal was successful. It is accordingly undoubtedly the case that even if the appellant were to succeed in full it could have no impact on the licencee’s position, or the licence, in respect of this issue. In these circumstances the plaintiffs now say the appeal is moot.
25 Mootness
The question of mootness has been considered in a number of recent decisions. It is difficult to improve on the observation of Murray CJ in Irwin v Deasy [2010] IESC 35:
“The mootness doctrine is applied by the courts to restrain parties from seeking advisory opinions on abstract, hypothetical or academic questions of the law by requiring the existence of a live controversy between the parties to the case in order for the issue to be justiciable”.
The Supreme Court has approved the analysis set out by the Supreme Court of Canada in Borowski v Canada (Attorney General) (1989) 1 SCR 342 to the following effect:
“An appeal is moot when a decision will not have the effect of resolving some controversy affecting or potentially affecting the rights of the parties. Such a live controversy must be present not only when the action or proceeding is commenced but also when the Court is called upon to reach a decision. The general policy is enforced in moot cases unless the Court exercises its discretion to depart from it”.
26 As observed in Borowski a case can be moot when commenced. Since mootness often arises as a result of some intervening external event (here the revocation of the Regulations) it is perhaps if anything more likely that mootness issues will arise at appellate level. However, there is always a potential complication when mootness is raised on appeal particularly in a court such as this where, the jurisdiction is predicated on the case involving a point of general public importance. There will at that stage always be a High Court judgment and often a judgment from the Court of Appeal. These judgments will remain statements of law binding on inferior courts unless and until reversed or qualified by a decision of the Supreme Court. The grant of leave to appeal to the Supreme Court however, raises at least a question about the state of the law on that topic, and means for example, that if not determined in the instant case, it may be raised again in further litigation which would have to be appealed up to the Supreme Court to achieve clarity. To dismiss an appeal as moot may leave the law in a state of even greater uncertainty. It is also the case that in our system a costs order will have been made in the courts below which the appellant has a real interest in seeking to overturn. While that in itself does not justify the maintenance of proceedings which are otherwise moot, it is not an irrelevant factor.
27 Here the case is undoubtedly moot as far as the respondent company is concerned. No outcome of the appeal will make any difference to the respondent or affect its legal position in any way, save in respect of costs. It is perhaps less clear that the appeal is truly moot from the point of view of the appellant State authorities. The decision of the High Court determined that Regulations which constituted the law of the State from the 2014 Regulations until the date of the High Court judgment were invalid. The State normally has a legitimate and important interest in seeking to establish (if it can) that there was a law in place during that period, and that anything done under it was lawful. Even if it is the case that there is some invalidity in the Regulations, then the State may nevertheless have a legitimate and real interest in establishing the extent of that invalidity. It was suggested in more concrete terms, that there were indeed other cases being dealt with under the 2014 Regulations, which would be capable of being dealt with if this case was determined in the State’s favour. It is not entirely clear that these cases could indeed be dealt with if the High Court decision was overturned, but if that is so, it creates a legitimate interest of the State in seeking to have the appeal determined. In addition to these facts, there are other considerations in this case. First, the 2014 Regulations were introduced in performance of the State’s obligation to bring into effect European law, and once again the State has an interest in showing that this area was the subject of regulation between 2014 and 2016. Second, the High Court judgment is necessarily broad ranging: accordingly it raises questions over a number of features of the Regulations which may appear in other provisions. More particularly, the outcome of the case will necessarily reflect on the validity of the 2016 Regulations which are currently in force. Third, the Court has granted leave to appeal direct from the High Court on the grounds that the case involves points of law of general public importance. This is relevant in two further ways. It suggests first that there are issues arising from the judgment which would benefit from the consideration of this Court. If the appeal is not determined, those issues remain unresolved, and there will be continuing uncertainty. A second and related aspect of this is that the issue is one by definition of general public importance, which normally might suggest that the case has an importance which extends beyond the specific dispute between the parties. All these factors mean, it is said, that either the case is not moot, or if moot, it is nevertheless a case the Court should determine.
28 It makes no difference here whether the case is considered as not moot because of the interest of the State in pursuing it, or moot as between the parties, but nevertheless one of those cases which it is appropriate to proceed to determination notwithstanding mootness. I am inclined to think that the correct analysis is that the case is technically moot because as between the particular parties to the litigation nothing will be altered by the outcome of the case. No legal consequence can flow from the decision which in any way will alter their relationship (other than possible liability in relation to costs, which is not itself a reason for determining a case otherwise moot). However it is analysed, I am clearly of the view that it would be wrong to dismiss this appeal as moot. It is not an irrelevant consideration that the plaintiffs in this case are in a position, and are perhaps best placed, to defend the appeal. It was their argument which succeeded in the High Court. They make the point however that they were being required to defend the appeal in circumstances where they had no interest in the outcome, and where it was very much in the State’s interest to pursue the appeal and have an issue of law clarified. This is something which might have an impact on any costs order the Court might make on the disposition of the appeal.
Arguments on Appeal
29 A number of different concepts and principles have been referred to in this case. It is perhaps useful to clarify the question that arises here. The 2014 Regulations were introduced pursuant to s.3 of the European Communities Act 1972 (as amended) (“the 1972 Act”). Section 2 of that Act provides in essence, that the Treaties and Acts of what is now the European Union and the Acts adopted by the Institutions of the European Union shall be part of the domestic law of the State. Section 3 of the Act permits the Minister to make regulations for enabling s.2 to have full effect. Section 3(2) provides that such regulations may contain such “incidental, supplemental and consequential provisions” as appear to the Minister making the regulations to be necessary for the purposes of the regulations.
30 Section 3 of the 1972 Act (as amended) is undoubtedly now the most often used power to make subordinate legislation. It is the route by which much of the corpus of European law is given effect in the Irish legal system. Most commonly Directives of the European Institutions are implemented into Irish law by the mechanism of a statutory instrument made under s.3. This case is slightly distinct because what is at issue are three Regulations of the Institutions of the Union, which take effect as domestic law by virtue of the combined effect of Article 288 TFEU, Article 29.4.6 of the Constitution and the provisions of s.2 of the 1972 Act. However, these particular Regulations of the Union Institutions are something of a hybrid case. These are not a comprehensive regulation of the area. Instead in certain limited respects they place upon Member States an obligation to make domestic provision, in this case a mechanism for the application of the points system established by the Control Regulation, it is indeed this feature of the Regulations which gives rise to the present proceedings.
31 The European Regulations do not specify what precisely the Member State is to do, or how. This of course is logical given the different legal systems in the Member States. Accordingly it is a matter for the Member State whether it chooses to perform that function through the medium of primary legislation by an act of the Oireachtas or subordinate legislation or instrument made under the European Communities Act. In the case of Ireland that may raise issues relating to the allocation of law making function in the State. As Fennelly J put it in Maher v Minister for Agriculture [2001] 2 IR 139 at p.250 quoting with approval the dictum of Lord Hoffman in R v Secretary of State for Health [2001] 1 WLR 127 at p.138, “Community law is indifferent to the internal arrangements of power within a member state “. The parties here have agreed that the test of whether a Regulation is properly implemented by way of statutory instrument under the 1972 Act, is by application of the familiar test known as “principles and policies”, and which can be traced back to Pigs Marketing Board v Donnelly [1939] IR 413. See Denham J in Meagher v Minister for Agriculture [1994] 1 IR 329, and Fennelly J in Maher v Minister for Agriculture, at p. 250. If the terms of the domestic provision are only to give effect to the principles and policies set out in the parent Act (in this case the European Regulations) then it is permissible to do so by statutory instrument. This is shorthand, and the application of a familiar test, albeit a test which is not without its difficulties. It is worth remembering however, that s.3 of the Act of 1972 sets its own test namely, whether the provisions of the 2014 Regulations can be said to be incidental, supplemental or consequential to the European Regulations which take effect in Irish law by virtue of s.2 of the Act of 1972. It can be useful to approach the question in this way.
32 In addressing that question it is I think desirable to approach the issues in a slightly different sequence to that in which they were addressed in the High Court and in argument in this Court. Logically I think the first issue therefore requires the Court to address an issue which was not specifically addressed in the High Court judgment, but was undoubtedly part of the argument before the High Court judge, albeit one which he found it unnecessary to determine given the conclusion he had reached on the validity of the 2014 Regulations. That question is whether it is permissible under the European Regulations to have a stand alone points system unconnected to, and not dependent or consequent upon, the system of sanctions for serious infringements of the Regulations? If so, it would be necessary to consider next the question canvassed in the High Court judgment, whether the decision to introduce a stand alone system is an issue of policy which means that it could only be done by primary legislation? A further issue arises also in respect of the particular form of the system introduced here. Is that too a matter of policy requiring primary legislation? Finally, if indeed the points system may be adopted as a stand alone system and introduced by way of statutory instrument, it is still necessary to consider whether the terms of the Regulations offend the Constitution in any other way? In this case that requires consideration of the requirement of fair procedures.
33 Stand alone system
The successful plaintiff in the High Court had argued that when read together the European Regulations do not contemplate a points system being introduced as a self-standing stand alone procedure. The IUU Regulations merely require Member States to adopt a regime for the prevention of IUU fishing, and that regime is required to be effective and dissuasive. It is expressly provided that such a regime may permit of enforcement through the criminal law, or, as occurs in some Member States, by an administrative system of sanctions, or indeed both. Ireland has adopted the route of seeking enforcement through the criminal law, and accordingly Masters of vessels may be prosecuted in the criminal courts and a range of sanctions is available. The requirement to introduce a points system which was contained in the Control Regulations was explicitly intended to be complementary to the system of enforcement already in place. In this context it is suggested that this would mean that points should be allocated in the Irish system only after there is a conviction on a criminal charge. This indeed is the method of implementation of the points system which was adopted in the United Kingdom. Although in theory this is a question which may be considered to be one of European law since it involves an interpretation of the Regulations, neither party has suggested that it is one which requires a reference to the CJEU and I am satisfied to deal with it on that basis.
34 I can certainly see that there are potential incongruities which may arise between the operation of the rigorous procedure under the criminal law, and the almost mechanical system of allocation of points under the 2014 Regulations. It is easy to see that there is a real possibility of inconsistent outcomes between the two procedures in relation to the same event. This may be so for a number of reasons such as the evidential requirements in criminal procedures, and the standard of proof, but it is certainly easy to anticipate that the same incident may not result in the conviction of the Master of the vessel, but may result in the allocation of points on the licence.
35 It is also the case that the European Regulations do not themselves make any reference to a stand alone process - indeed if they did this argument could not have been raised. It may therefore have been anticipated that the Regulations would be given effect to normally, by permitting points to be applied in consequence of the determination by the criminal or administrative process which was already in existence. However that is very far from determining that a stand alone system is not permitted by European law. The entire thrust of the European Regulations is to seek greater effectiveness and more dissuasive measures for the enforcement of the conservation rules. The possibility of points being allocated to a licence and remaining on that licence even after transfer, is likely to add to the dissuasive effect of the regime for enforcement of fishing rules. The possibility of points being allocated even before criminal proceedings are completed, or even though the outcome of the criminal proceedings may be an acquittal, is not a reason to conclude that the stand alone system is incompatible with the European Regulations since that outcome will, if anything, increase the possibility of enforcement of the rules, and in dissuading operators and licence holders from permitting breach of them. A stand alone system of points allocation certainly does not weaken enforcement. It can also be truly said to be complementary to the existing enforcement regime since it enhances enforcement and therefore compliance. In my view it is clear that such a system of points allocation is permissible under the European Regulations. It is noteworthy that we were not referred to any report or commentary suggesting otherwise.
36 The respondent however puts more emphasis on the question of whether a stand alone system could be introduced by statutory instrument, or rather was a clear policy choice which was something as a matter of Irish constitutional law which was required to be made by the Oireachtas. Here the Minister chose to introduce a stand alone system, which was plainly not a choice required, or even guided, by the European Regulations. The Minister could have made the points system itself consequent on conviction as the United Kingdom authorities had done. Alternatively he could perhaps have introduced a system of administrative enforcement more generally to which the points system could be attached. These, it is said, are clearly policy choices in which no guidance is to be found in terms of principles and policies in the European Regulations. Accordingly it is argued that the regime here could only have been established by primary legislation and accordingly that the Regulations breached the guarantee contained in Article 15.2.1 of the Constitution.
37 This argument is elaborated on in relation to the more settled provisions of the 2014 Regulations. It is plain that the Minister was at large, at least as a matter of European law, in determining the procedure and the mechanism by which points were awarded. Thus, a courts system of enforcement could have been established. A different administrative body might have been established to award points in the first place, and permitting appeal to a court or another appellate body. Nothing required that the onus be placed upon the licence holder to establish that points ought not be allocated. It is said that in each respect, no guidance is to be found for these choices in the European Regulations themselves. All these features of the regime were choices made in the 2014 Regulations. It is argued that these are policy choices. It follows, it is said, that the Regulations are ultra vires the Minister’s power to make regulations under s.3 of the 1972 Act, since the determination of policy in law involves law making which is reserved to the Oireachtas under Article 15.2.1 of the Constitution.
38 The principles and policies test while regularly invoked, has remained somewhat elusive. Indeed it is a difficult test to apply in the present context. At one level the European Regulations are replete with policy. As the respondents point out the European Regulations contain 127 recitals alone, giving cumulatively, a very clear view of the overall thrust of the provisions and the principles and policies embodied in them. On the other hand, the European Regulations very deliberately leave to the Member State the choice of method for establishing a system for the allocation of points to the licence. That means that the domestic authorities must make choices. At one level at least, those choices can be said to involve some policy considerations, since presumably the choice is made on the basis that a particular provision is considered more effective, convenient, compatible or simply better. Certainly the outcome is not dictated or even guided by the European Regulations, Instead what those Regulations show clearly is that the policy of the Regulations is that, in this area at least, the issue is one for the domestic authorities. The plaintiffs point out that there are in theory a significant range of point allocating processes that could have been adopted and similarly a range of procedures which could have been established. Once the process is effective and dissuasive and the procedures are fair, the domestic authorities are, in this respect at least, at large. This it is said contravenes the principles and policies test, or more precisely, means that the issue for determination by the domestic authorities is one which can only be achieved by primary legislation.
39 However, it is in my view an error to approach the issue on the basis that the parent legislation must be scoured to provide detailed guidance for the subordinate rule maker. As observed in Bederev v Ireland, Attorney General [2016] IESC 34, every delegate must make some choice. If the parent legislation dictated the outcome, then there would be no benefit gained by the delegation of the task to the subordinate: the parent legislation could, and therefore should, include the provision in the first place. Thus the entire concept of subordinate regulation depends upon and contemplates decisions being made between a range of options. Any decision involves consideration of what the decision-maker considers is the best solution in the circumstances. The question is the scope of the decision making left to the subordinate rule maker.
40 The test can be approached negatively. Is the area of rule making delegated, so broad as to constitute a trespass by the delegate or subordinate on an area reserved to the Oireachtas by Article 15.2.1? This involves a consideration of a number of factors including the function of the parent legislation and the area in which the subordinate has freedom of action. An apparently wide delegation may be limited by principles and policies clearly discernible in the legislation. On the other hand, a very narrow area of delegation may require very little in terms of principles and policies in parent legislation, on the basis that by delegating an area with only a limited number of possible solutions the Oireachtas was plainly satisfied that any one of those outcomes could be chosen consistent with the policy of the Act, and properly be decided on by a subordinate body which might have access to further detailed information, or indeed on the basis that the outcome might be more easily adjusted within the scope left to the subordinate, in the light of changing circumstances. To take a simple example, if a body is given authority to fix all the terms of a licence, that is a power which may on its face appear unlimited, and it may be necessary to consider if there are sufficient policies and principles in the parent legislation to narrow the scope of subordinate decision making, and guide the decision-maker. If however the delegation is merely to fix a licence fee within a minimum and maximum already identified, it may follow that the Oireachtas has already contemplated a range of possible outcomes and considered them compatible with the statutory objective, and was content to leave the decision as to what precise point within that scale was the most appropriate in the light of changing circumstances, to a subordinate body. It would not be necessary to look in addition for detailed principles and policies to guide that task.
41 Here the most striking feature of the legislative scheme is not just the regulatory straitjacket that applies to Member States, but the detailing on the garment. Uniformity in the rules, and so far as possible in their application as between Member States, is a clear and specific objective of the European Regulations. The fundamental decisions, that IUU fishing is a serious threat to the Common Fisheries Policy; that existing methods of enforcement were not sufficient to discourage and prevent such fishing; that those methods of enforcement require to be supplemented by a system of points allocation on licences; the particular transgressions requiring points allocations; the number of points to be applied once a breach is established; the number of points which can be accumulated before suspension; the initial and subsequent periods of suspension; the level of the infringement giving rise to loss of a licence; the requirement that points transfer with the licence; the possibility of erasing all accumulated points; the period necessary to do so and many other features of the scheme are all specified by the European Regulations. Indeed, it might be said that the only substantive matter left to Member States in this regard is a decision as to whether an infringement is serious, and even then the factors to which regard may be had are themselves prescribed.
42 What is left to Member States therefore is the establishment of a process for the allocation of the points in practice. It is to be noted that every other step in the process is prescribed by the European Regulations. Whatever the vehicle chosen it must address the same issue in the same way with the same consequences. Even then, that choice is constrained by the requirement that the system be effective and dissuasive, and the overriding obligation in both national and European law that any process be fair. Viewed in this way it can be fairly said that the 2014 Regulations are indeed incidental, supplemental and consequential to the European Regulations. While the Regulations of 2014 certainly involve a choice or a range of choices on the part of the Minister, those choices are severely limited in terms of the overall regulatory scheme. The points system whether laid down as a stand alone regime, or consequential on a determination made in other proceedings, will operate in exactly the same way. The procedure is required to be determined by the Member States and raises no issue of broad policy that requires a determination by the Oireachtas.
43 A useful comparison may be drawn with the decision in Maher v Minister for Agriculture. There the decisions to be made by the Member State had undeniable significance for individuals concerned (and indeed the dairy industry more generally) but as Keane CJ put it, the choice of policy in the field available to the Minister had been reduced almost to vanishing point, and as Fennelly J put it, the Minister was acting as the delegate of the Community. In other words the area of delegation was small and constrained. In the same way the area of policy left to the Member State here is also severely reduced. A choice does not imply a capacity to determine policy. The matters dealt with in the Regulations were incidental, supplemental and consequential to the provisions of the European Regulations. Accordingly, I do not consider that in principle the establishment of procedures under the 2014 Regulations contravened Article 15.2.1, and I would allow the appeal in that respect.
44 However, that conclusion does not determine the outcome of this appeal. A final point debated in this case concerned the fairness of the procedures established under the 2014 Regulations. Because a cumulative approach was taken in the High Court, this issue was dealt with as part of the analysis of whether the Regulations breached Article 15.2.1. The reasoning in that respect appears to have been that at a minimum the procedures adopted were so unusual and departed so clearly from the norm that could be expected in administrative procedures in this jurisdiction, that they required primary legislation. For the reasons already set out I respectfully disagree. It is however possible to consider those features of the regime in the context of the fair procedures required by the Constitution.
45 A number of features of this scheme arise for consideration. It appears that once a fisheries officer (“SFPO”) “detects” a breach, the only matter for the SFPA to consider is, if the violation is “serious” by reference to the criteria set out in Article 44. The Authority is of course not required to be independent of its officer, and it is not contemplated that the Authority should decide any issue of fact such as whether the violation occurred. Nor is it contemplated that there would be submissions or representations to the Authority or the provision of a reasoned decision by it. Indeed since the SFPA determines no issue of fact, and merely assesses the violation by reference to fixed criteria, it might be thought that there is little that requires reasoned elaboration. The Authority is required to notify the licence holder of the points proposed to be attached. If there is no appeal within a limited time (which time period cannot be extended) the points must be applied to the licence. The action taken by the SFPA, while limited in scope, is nevertheless serious in its legal and factual consequences. If the licence holder appeals, the grounds of appeal are specified, and the appellant licence holder bears the onus of establishing them before the appeals officer. If the licence holder fails to do so, or if there is no appeal within the 21 day period, the points must be applied. The significance of the onus of proof in any case can be determined by what occurs if the decision maker genuinely is unable to decide the issue: the person who bears the onus of proof must fail. In such a case the Regulations require that the points must be applied. The only appeal from that decision is a limited appeal on a point of law to the High Court and the determination of the High Court is required to be final and unappealable.
46 The Regulations of 2014 were required to establish proposals for the attribution of points for identified infractions. Such a process is necessarily required to be fair. As Barrington J observed in Mooney v An Post [1998] 4 IR 288, the requirement of fair procedures can differ depending on the issue to be determined, and it is a mistake to assume that a single one size fits all procedure must be applied, and perhaps a serious error, to which lawyers are prone, to approach any such case on the tacit assumption that only procedures which approximate to a criminal trial are fair, and anything which departs from that is somehow dubious.
47 Here, however the striking feature of the Regulations as already discussed, is the limited scope for domestic regulation, and in turn the limited scope for decision making in the individual case. The only thing that must be decided is whether the incident occurred, and if so whether serious. Here the question of whether the incident occurred is in effect presumed. In practice such a conclusion may almost be routine. Fishing is a very highly regulated industry. It is indeed difficult to think that given for example the detailed provisions for record keeping, and the powers of inspection, that there could be much room for genuine factual dispute in individual cases, once an inspection has been carried out. Nevertheless, it is not sought to make a decision of the officer determinative. The Regulations recognise the need for some opportunity for representation before an independent decision maker, and indeed the possibility of a hearing. However, the Regulations appear almost to represent an exercise in determining the absolute minimum that can be afforded by way of fair procedures. No one should be unaware of or insensitive to the inefficiencies and costs that can be caused by over elaborate procedures, but the difficulty in seeking to chart the precise limit of what is required by fair procedures, and observe that limit but no more, is that it is easy to unintentionally cross that boundary. As was observed in another context, the person who seeks to sail close to the wind will get little sympathy if they are blown over.
48 The State parties defend this aspect of the case in a way which is revealing. It is argued that the evidence in this case shows that in practice the procedures before appeals officers almost always involved the Authority presenting evidence and in effect accepting the onus of proof. It is further argued that the proceedings in this case were premature, and that had the process been allowed to proceed further, the plaintiffs would have had no complaints about the fairness of the process because of the practices which are routinely adopted by appeals officers. However, the fact that the procedures prescribed by the Regulations are not adhered to strictly, and that in practice the appeals officer does not stand by the Regulations in requiring the appellant to prove grounds of appeal, raises issues of both principle and practicality. First, it may suggest that it is perceived to be fairer to have the Authority lead evidence and accept the burden of persuasion. However, even if only viewed from a point of view of practicality, the argument recognises perhaps that the streamlining of procedures on paper, may not achieve the objective of making the process simpler in fact. The Regulations impose an obligation on the appellant licence holder to prove a negative - for example that an event did not occur. But if the appellant raises any issue in that regard the SFPA must be able to counter it. Of necessity therefore, the Authority will have to have all its evidence available, and there may be no saving of time or cost, and only confusion caused, by requiring the appellant licence holder to seek to prove a negative.
49 It is noteworthy that the authorities should seek to defend the procedure prescribed by the Regulations on the basis that it is not followed in practice. I do not think that this approach is in truth permissible. The obligation to follow fair procedures and to interpret any legislation or regulation on the basis that any procedures prescribed thereunder must be fair, may be useful in sustaining the constitutionality of a provision which is otherwise silent on procedural aspects, but it cannot in my view be used to contradict or disregard procedures which are specifically provided for by the legislation or regulation. In this case for example, if either the Authority decided not to adopt the procedures discussed, or if an appeal officer refused to permit the Authority to accept the burden of proof, and in either case the issue came before the courts, the courts would in my view be bound to uphold and enforce the unambiguous provisions of the Regulations.
50 The question must therefore be approached on the face of the Regulations. It is not as I understand it suggested that there is any ambiguity in this regard. Thus, the issue is properly resolved by considering the scope and significance of the decision, and the cumulative impact of the procedures applied. It may well be the case, that individual components of the procedure created by the Regulations can be adopted without breach of any fair procedures, but the issue here is the overall fairness of the process in the context of the significance of the procedure for which the process is established. In my view, the most contentious aspects of this process are that in effect there is only one hearing of any substance, that the licensee must initiate it, and the hearing proceeds from the default position, that unless the applicant proves specified grounds of appeal, the decision maker is obliged to allocate the points to the licence. Taken to its logical conclusion this means that even if the Appeals Officer was genuinely in doubt on fundamental aspects of the matter, he or she would nevertheless be obliged to dismiss the appeal. It might of course be doubted that in practice this would occur, but that is nevertheless a logical consequence of the Regulation.
51 I wish to emphasise that it cannot be said that it is always improper to have a single decision making process, or to have a default position, or to place upon a licence holder an onus of proof or indeed the entire burden of proof. In each case the question of the fairness of the procedures must be gauged against the subject matter of the decision, its significance, the difficulties of proof, and the consequences of error. For example, if the process being licensed is one which is so dangerous, and the consequences of error so serious, then it may be appropriate to place upon an operator either the initial burden of proof of safety, or a burden once some preliminary issues are raised. Similarly there are some decisions which may require to be taken so urgently, that they should be taken by a single decision maker, without prior consultation on the basis that they take effect immediately, with a right merely to apply to have them set aside. However, here there is nothing in the Regulations either domestic or European, which suggest such an urgent need to compress and skew the process of decision making, and nothing has been suggested. The High Court judgment does make reference to the suggestion that it can take up to two years to have criminal proceedings heard and determined. It is possible that the Regulations reflect frustration with the criminal process in terms of the procedures required and the length of time involved. It is dangerous however to seek a drafting solution to what are problems of resources. It may also be that the very high level of constraint created by the European Regulations means that there is limited incentive for operators to accept that a breach has occurred. It does not appear for example, that the points allocation can be mitigated by cooperation or early admission of breach. This may mean that many cases will be appealed almost routinely, and it may be that the procedure is streamlined in an attempt to limit delay and diversionary tactics. The streamlined procedure may also reflect the reality that once an infraction is detected in fact, in most cases point allocation may be almost inevitable. But whatever the rationale it remains the case that the system of point allocation has, and is intended to have, significant impact on a licence holder’s capacity to earn a livelihood. Points attributed can rapidly reach the point of suspension and may ultimately lead to removal of the licence. The seriousness of this consequence for the licence holder is an aspect of the system which is quite deliberate since the system is designed to achieve the objective of encouraging compliance with the Common Fishery Policy rules in an area where detection is both difficult and costly. But the seriousness of consequences also means that the process must accord with fair procedures.
52 In my view it is appropriate to consider the fairness of the procedures under the Regulations as a whole. The procedures dictated by the Regulations of 2014 taken cumulatively, do not afford fair procedures, in particular, by providing for an onus on the licence holder to initiate the hearing process and carry the burden of proof in what is in effect a single decision making process. At the time the licence holder is notified of the proceedings there has been a presumptive conclusion adverse to him or her. I do not think it is useful to attempt to weigh each of the individual components so as to determine the precise point at which the removal of one element will lead to the invalidity of the Regulation, in the same way as the child’s toy might survive while bricks are removed but collapse when a particular brick is removed. The facts in each case are different, and the justification so distinct, that it is I think appropriate merely to observe that if the Regulations of 2014 were seeking to hew exactly to the line of the minimum required by fair procedures in this case, they have in my judgment crossed that boundary, and the decision of the High Court that the 2014 Regulations are invalid must be upheld albeit on this narrower basis.
53 Finally, it is observed in passing, in the appellants’ submissions, that if for example the limitation of appeal from the High Court was found to be offensive, the Regulations could be severed. This does not arise now but I should say that I doubt that this was possible in the particular case, or more generally. Here, the purpose of the Regulations was to establish a procedure. If that procedure has been found in important respects to have failed to satisfy fair procedures and therefore to be invalid, I do not think that it is possible as a practical matter to sever those aspects from the Regulations and leave regulations which are capable of being applied fairly. Accordingly, I would uphold the declaration of the High Court that the Regulations of 2014 are invalid, but on the grounds that the Regulations do not comply with fair procedures and would otherwise dismiss the appeal.
