THE HIGH COURT
JUDICIAL REVIEW
[2001 No. 350 J.R.]
Between:
PERCY PODGER
Applicant
and

THE MINISTER FOR AGRICULTURE, FOOD AND RURAL DEVELOPMENT
Respondent

Judgment of Mr. Justice Aindrias Ó Caoimh delivered the 15th day of May, 2002.

	The applicant is a sheep farmer who resides at French Furze, The Curragh, County Kildare. He farms 75 acres at French Furze and has the benefit of grazing rights as a statutory commoner of the Curragh.  At the time of the commencement of these proceedings the applicant had approximately 550 adult sheep and was at all times dependent upon the rights of commonage at the Curragh.
	In these proceedings the applicant seeks an order of certiorari quashing the decision of the respondent as notified to him by a direction signed by Thomas Myers, as servant or agent of the respondent and dated the 26th March, 2001, which direction required the applicant to remove his sheep from the Curragh to French Furze on or before 9 a.m. on the 27th March, 2001.  In addition the applicant seeks a declaration that the decision of the respondent is ultra vires  the powers of the respondent and void having regard to the provisions section 17A of the Diseases of Animals Act, 1966 (as inserted by section 2 (1) of the Diseases of Animals (Amendment)  Act, 2001 and/or the Diseases of Animals Act, 1966 (Commencement of Sections 17A and 29A) Order 2001 ( S.I. 98 of 2001).
	A declaration that section 17A of the Diseases of Animals Act, 1966 as inserted by the Diseases of Animals (Amendment) Act, 2001 was not in operation on the 26th March, 2001 and the direction of the 26th March is therefore void and/or ultra vires  the powers of the respondent.
The essential grounds relied upon by the applicant are:
(a) 	that the direction dated the 26th March, 2001 was made pursuant to section 17A of the Diseases of Animals Act, 1966 as inserted by the Diseases of Animals (Amendment) Act, 2001, which section only became operative on the 27th March 2001 by virtue of  S.I. 98 of 2001.  The aforesaid direction in those circumstances was made without the necessary statutory authority and was consequently ultra vires the powers of the respondent;
(b) 	the said direction is void and ultra vires the powers of the respondent as the day appointed pursuant to section 1 (2) of the Diseases of Animals Act, 1966 as the day on which section 17A of the Diseases of Animals Act, 1966 (as inserted by the Diseases of Animals (Amendment) Act, 2001) is specified as the 27th day of  March 2001, by the Diseases of Animals Act, 1966 (Commencement of Sections 17A and 29A) Order, 2001 (S.I. 98 of 2001) and in those circumstances the respondent was acting in excess of jurisdiction in issuing a direction prior to the commencement of the section relied upon.
(c) 	In consequence, the respondent’s purported direction was not authorised by section 17A of the Diseases of Animals Act, 1966 and the said direction had no statutory authority.
The essential issue in these proceedings is what is the date of the commencement of section 17A of the Diseases of Animals Act, 1966 (the 1966 Act) as inserted by the Diseases of Animals (Amendment) Act, 2001 (the Act of 2001).
	Section 2 of the Act of 2001 inserted after section 17 of the Act of 1966 the new section 17A.  Section 11 of the Act of 2001 reads as follows:
11 - (1)  This Act may be cited as the Diseases of Animals (Amendment) Act, 2001.
(2) 	The Diseases of Animals Acts 1966 to 2000, and this Act may be cited together as the Diseases of Animals Acts, 1966 to 2001, and shall be construed together as one.

Section 1 of the Act of 1966 reads as follows:
1 - (1)  This Act may be cited as the Diseases of Animals Act, 1966.
(2)  This Act or any specified provision of this Act shall come into operation on such day or days as the Minister may by order appoint.
The essential issue is whether s. 17A was required to be brought into operation by means of a Ministerial order or whether upon its enactment it came into operation insofar as the Act of 2001 did not provide that any of its sections were required to be brought into operation by means of Ministerial order.
	It is agreed between the parties that at the time of the enactment of the Act of 2001 that all the sections of the Act of 1966 were in operation.
	The direction in the instant case was given on the 26th March, 2001 by Mr. Myers, an authorised officer of the Minister in respect of the following day insofar as it required the applicant to move his sheep from the Curragh by 9 a.m. on the following day.
	On the 27th March, 2001 a ministerial order was made by the respondent being Statutory Instrument No 98 of 2001 being the Diseases of  Animals Act, 1966 (Commencement of Sections 17A and 29A) Order, 2001.
	This order reads as follows:
“I, Joe Walsh, Minister for Agriculture, Food and Rural Development, in exercise of the powers conferred on me by section 1 (2) of the Diseases of Animals Act, 1966 (as adapted by the Agriculture and Food (Alteration of Name of Department and Title of Minister) Order, 1999 (S.I. No. 307 of 1999) hereby order as follows:
1.	This Order may be cited as the Diseases of  Animals Act, 1966 (Commencement of Sections 17A and 29A) Order, 2001.
2.	The 27th day of March, 2001, is appointed as the day on which sections 17A and 29A (as inserted by the Diseases of Animals (Amendment) Act, 2001 (No. 3 of 2001) of the Diseases of Animals Act, 1966 (No. 6 of 1966), shall come into operation.”
	The issue before me is whether section 17A was operational as a matter of law upon the coming into force of the Act of 2001 or whether it was dependent upon the making of an order such as that made by the respondent on the 27th of March, 2001.
	On behalf of the applicant it is submitted that s. 17A must be taken to be governed in the same way as other provisions of the Act of 1966 and accordingly require a Ministerial order to bring same into operation. 
	It is submitted that the order made by Mr. Myers was a nullity when it was made on the 26th of March, 2001 if the Act in question ( and in particular s. 17A itself) was not in force at that time.
	On behalf of the respondent, it is submitted by Mr. McDonagh, that the issues arising in this case are not addressed in Bennion, Statutory Interpretation, 2nd ed. and no authority has been indicated by counsel to exist in relation to these issues.
	It is submitted by counsel that in the first instance this Court must consider the Act of 2001 isolated from the commencement order made on the 27th of March, 2001.
	It is submitted that a further issue that arises is whether the authorised officer Mr. Myers was entitled to make the direction prior to the coming into force of the section itself.
	It is submitted that this court is entitled to take judicial notice of the existence of an emergency situation facing the country at the time caused by the outbreak of Foot and Mouth Disease in Great Britain.  It is indicated that the Bill leading to the Act of 2001 was introduced into Seanad Éireann on the 7th March 2001 and passed through all stages in Seanad Éireann at that time and that on the following day the 8th March 2001, it passed through all stages in Dáil Éireann and that it was signed into law by the Presidential Commission on the 9th March, 2001.  It is submitted that it was in effect emergency legislation dealing with an immediate and acute situation and that the absence of a commencement provision in the Act is consistent with the urgent approach of the Oireachtas at that time.
	It is argued that if the submissions of counsel for the applicant are correct and if the Act of 2001 had a commencement provision that it would require two orders to be made at that time to bring s. 17A into operation. 
	It is submitted that the intent of the Oireachtas at the time was that the section would be operative upon the passing into law of the Act of 2001.
	It is submitted on the other hand that if there had been no commencement section in the Act of 2001 and none in the Act of 1966 that the effect of the passing of the Act of 2001 would be that s. 17A would be operative from 1966 or from the passing of the Act of 2001 and the signing of the said Act into law by the Presidential Commission.
	Counsel for the respondent has referred this court to the provisions of s. 2 (2) of the Act of 2001 which reads as follows:
(2) 	(a) Subject to paragraph (b), section 17A (inserted by subsection (1)) of the Principal Act shall remain in force until the expiration of the period of twelve months from the date of the passing of this Act and shall then expire.
(b) The said section 17A may be continued in force from time to time by a resolution of each House of the Oireachtas, passed before its expiry, for such further period as is expressed in the resolution.
	This provision is referred to as a “sunset clause” and it indicates the period during which the section in question shall remain in force and when it shall cease to be in force.  Counsel submits that this provision indicates the clear intention of the Houses of the Oireachtas that the section would be in force from the date of the passing of the Act of 2001.  On this basis it is submitted that this court should interpret the Act of 2001 as giving S. 17A full force and effect from the date of the passing into law of the Act of 2001.
	Counsel concedes that it may be a fact that the Minister thought that a ministerial order was necessary to bring S. 17A into operation but that the thinking of the Minister cannot affect the intent of the Oireachtas in the passing of the Act of 2001.
	On the basis of these submissions counsel submits that the applicant’s action must fail and should be dismissed.
	Without prejudice to the foregoing, it is submitted by counsel for the respondent that s. 10 of the Interpretation Act, 1937 (the Act of 1937) is of relevance as indicating that the direction, the subject matter of these proceedings was capable of being given at the time of its making, notwithstanding the fact that s. 17A may not have been in full force and effect until midnight on the 26th of March, 2001.
	Section 10 of the Act of 1937 reads as follows:
10.- 	(1) Where an Act of the Oireachtas or any particular enactment contained in any such Act is expressed to come into operation on a day subsequent to the date of the passing of such Act, the following provisions shall have effect, that is to say:-
(a)	...
(b)	 if such Act confers power to make or do, for the purposes of such Act or such enactment (as the case may be), any instrument, act, or thing, the making or doing of which is necessary or expedient to enable such Act or enactment to have full force and effect immediately upon its coming into operation, such power may, subject to any restrictions imposed by such Act, be exercised at any time after the passing of such Act.”
	On the basis of this section it is submitted by counsel for the respondent that the direction given by Mr. Myers, the subject matter of these proceedings, was to enable the Act to have full force and effect immediately upon its coming into operation.
	He submits that if the applicant is correct to suggest that section 17A did not come into operation until midnight on the 26th March, 2001 by reference to the commencement order made  by the Minister, that rather than Mr. Myers wait to midnight to make a direction under the section that it was open to him, by reference to S. 10 (1) (b) of the Act of 1937 to make the order in question prior to the coming into operation of the section to enable it to have full force and effect upon its coming into operation.
	Counsel refers to the definition of ‘instrument’ appearing in s. 3 of the Act of 1937 and submits that the same includes the direction given in the instant case.  Instrument is defined as “…an order, regulation, rule bye-law, warrant, licence, certificate or other like document.”
	Counsel refers to the definition of “instrument” in Greenberg and Milbrook, Stroud’s Judicial Dictionary of Words and Phrases, 6th ed. as including “a writing, and generally imports a document of a formal legal kind.”
	Further reference is made by counsel to Butterworths, Words and Phrases Legally Defined 3rd ed. where the word ‘instrument’ has been defined to include a document.  On the basis of these definitions it is submitted that the word ‘instrument’ appearing in the Act of 1937 must include the notice or direction given in the instant case.
	It is submitted that the effect of this construction is that rather than give the applicant nine hours notice from midnight, he was given a further six hours notice, as the notice in question containing the direction from Mr. Myers, was given to the applicant at approximately 6 p.m. on the 26th March, 2001.
	Counsel further submits, if this court is not disposed to accept the submissions made on behalf of the respondent, that in its discretion it should not grant to the applicant the relief which he seeks.  Counsel asks this Court to decide the case on the submissions made and only in the event of the court not accepting the submissions of the respondent should it then hear further submission in relation to the issue of discretion.
	In reply to the submissions made on behalf of the respondent, it is submitted by Mr. Callanan Counsel for the applicant that he has no difficulty with this court taking judicial notice of the Foot and Mouth crisis at the time in question in these proceedings.  However, it is submitted that no inference can be drawn from the state of affairs at the time that the provisions of S. 17A were intended to take immediate effect from the date of passing of the Act of 2001. Counsel refers to the passage of time that elapsed from the passing of the Act of 2001 on the 9th March 2001 to the making of the commencement order on the 27th March, 2001.
	With reference to S. 2(2) of the Act of 2001, it is submitted that the same should not be construed as meaning that S. 17A was of full force and effect upon the passing of the Act of 2001.  It is submitted that section 17A is expunged by the passage of time but this does not mean that the section was brought into force by the passing of the Act of 2001.  It is submitted that the subsection relates to the continued existence of S. 17A as opposed to indicating that the same was to have full force and effect from the date of the passing of the Act of 2001.
	Counsel for the applicant refers to the words “ in force”  in S. 2 (2) of the Act of 2001 and “ into operation” in S. 1 (2) of the Act of 1966  and suggests that these cannot be synonymous. Counsel submits that the wording of S. 2 (2) of the Act of 2001 cannot be read as dispensing with the necessity for the making of an order bring S. 17A into force.  It is submitted that S. 2 (2) cannot be construed as meaning that S. 1 (2) of the Act of 1966 ceased to have any effect.
	With reference to the possibility of Mr. Myers making a direction at one minute past midnight on the 27th March, 2001, it is submitted that there was no way in which he was precluded from doing so and no prejudice existed to prevent such being done.  Counsel reiterates, however, that the order at issue in these proceedings was not made after midnight on the morning of the 27th March, 2001 but in fact was made the previous day at a time when S. 17A was not in operation.
	With reference to the reliance sought to be placed by the respondent on S. 10 (1) (b) of the Act of 1937, it is submitted that it cannot be construed as permitting the making of the order or direction in this case as the ‘instrument’ relied upon was not one “the making or doing of which is necessary or expedient to enable such Act or enactment to have full force and effect immediately upon its coming into operation,” and on this basis it is submitted that the subsection can have no application to the facts of this case.  It is submitted that the subsection can have no application to the notice or direction given in this case as it is submitted that it applied to the addressee and not to enabling S. 17A of the Act to have full force and effect upon its coming into operation.

Conclusion:

	In regard to the first issue, namely whether it was necessary to make an order bringing S. 17A into operation, I believe having regard to the Act of 2001 that it was one which was clearly on its face intended to come into immediate operation on its passing and to be of immediate force and effect. I consider that S. 2(2) of the Act indicates clearly that the intention of the legislature was that s. 17A was intended to be in force from the date of the passing of the Act of 2001 and in these circumstances I do not accept the submission advanced on behalf of the applicant that the section had no force or effect until an order was made pursuant to S. 1(2) of the Act of 1966.  I consider that the reference to S. 17A remaining in force, where the words “shall remain in force” are used, indicates the intention of the legislature that it was to be in force upon the passing of the Act of 2001.
	On the other hand were I required to decide this case by reference to S. 10(1) (b) of the Interpretation Act, 1937, I would not be disposed to hold with the respondent on the submission that the impugned direction or order of Mr. Myers was an ‘instrument’ “the making or doing of which is necessary or expedient to enable” the Act of 2001 or S. 17A “to have full force and effect immediately upon its coming into operation,” as I am satisfied that the direction or order pertained to the applicant and not to the Act or the enactment in question and on this basis I am satisfied that subsection 10 (1) (b) can have no application to the facts of this case. 
	In all the circumstances of this case I am satisfied that the applicant’s application must fail and I refuse the relief sought.