The Supreme Court
1993 No. 127
Between
John Meagher
Plaintiff
And
The Minister for Agriculture and Food,
Ireland and the Attorney General
Defendants

[18th November, 1993]

[Judgment of the Court delivered pursuant to the provisions of Article 34.4.5° by Finlay CJ]

FINLAY CJ :

This is an appeal by the respondents in an application for judicial review against an order made in the High Court by Johnson J on 1 Apri11993, whereby he declared that such portion of s. 3(2) of the European Communities Act 1972, as entitles a minister by regulation to repeal or amend or apply with or without modification other law exclusive of that of the said Act is unconstitutional.

The application for judicial review in which this declaratory order was made had sought a declaration that the European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations 1988, SI No.218 of 1988, and the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations, SI No.171 of 1990, are ultra vires and void.

The application also sought an order of certiorari quashing a search warrant purportedly granted by a judge of the District Court pursuant to those regulations, and in addition, sought an order of prohibition of the first named respondent from proceeding to prosecute the applicant in respect of summonses alleging offences against the regulations.

The learned trial judge, having reached a conclusion that the particular subsection of the European Communities Act 1972 (the 1972 Act) was invalid, having regard to the provisions of the Constitution, did not make any declaration with regard to the questions of ultra vires, nor did he make an order quashing the warrant or prohibiting the prosecution.

The respondents in appealing against the order of the learned trial judge declaring the subsection of the Act of 1972 invalid, having regard to the Constitution, maintained in the alternative that if the court were to conclude that the statutory instruments concerned were ultra vires or constituted an unconstitutional exercise of the power to legislate by regulation then the statutory instruments, alone, should be condemned but the subsection of the statute should not.

The applicant for judicial review who is the respondent on this appeal, had not served any notice to vary, but was permitted in the interests of justice by the court to make the case that even if his challenge to the constitutional validity of the subsection of the Act of 1972 were to fail he should be entitled to maintain a challenge which he submitted was correct, against the validity of the regulations made pursuant to that subsection and that, accordingly, the warrant of search provided under them and the summons for an offence against them would both be invalid.

This decision, which is the Decision of the Court, pronounced pursuant to Article 34.4.5° of the Constitution deals only with the challenge to the constitutional validity of the impugned subsection of the 1972 Act.

The impugned legislation

The relevant provisions of the European Communities Act 1972 are:

S. 2:

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

S. 3:

(1) A minister of state may make regulations for enabling s. 2 of this Act to have full effect.
(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying with or without modification, other law, exclusive of this Act).

The constitutional provisions involved

The constitutional provisions involved are the provisions contained in Article 29.4.3°, 4° and 5° of the Constitution, which are in the form consequent upon the Eleventh Amendment of the Constitution enacted by the Eleventh Amendment of the Constitution Act 1992, which came into force on 16 July 1992, and also Article 15.2.

Article 29.4

3° The State may become a member of the European Coal and Steel Community (established by treaty signed at Paris on 18 April 1951), the European Economic Community (established by treaties signed at Rome on 25 March 1957) and the European Atomic Energy Community (established by treaty signed at Rome on 25 March 1957. The State may ratify the Single European Act (signed on behalf of the member states of the communities at Luxembourg on 17 February 1986, and at the Hague on 28 February 1986.)
4° The State may ratify the Treaty on European Union signed at Maastricht on 7 February 1992, and may become a member of that union.
5° No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the communities, or by institutions thereof, or by bodies competent under the treaties establishing the communities, from having the force of law in the State.

Article 15.2.1°

The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State...

The challenge to the validity of the statutes

The broad nature of the challenge made to the constitutional validity of s. 3(2) of the Act of 1972 may thus be summarised.

1. If Article 29.4.5° of the Constitution does not apply to this subsection, then it would be invalid having regard to the provisions of Article 15.2 of the Constitution because a power provided by statute to a minister to make laws by regulation or statutory instrument which included provisions either repealing, amending or modifying other law, including statute law enacted by the Oireachtas, would constitute an invasion of the sole and exclusive power of making laws vested in the Oireachtas. In support of this contention reliance was placed on the decision of this Court in Harvey v. Minister for Social Welfare [1990] ILRM 185; Cooke v. Walsh [1984] ILRM 208; and Cityview Press Ltd v. An Comhairle Oiliúna [1980] IR 381. In respect of the last two decisions reliance was placed in particular upon the fact that the Act of 1972 did not in any of its other provisions lay down principles or policy which could be said to restrict the discretion vested in the minister in the making of regulations pursuant to s. 3(2) to application and administration of given guidelines.

2. It is submitted that Article 29.4.5° of the Constitution cannot protect the impugned subsection from the invalidity arising by reason of its inconsistency with Article 15.2 because, whereas in general terms the obligations of membership of the union and communities imposes upon the State a duty to apply the laws enacted and to implement acts done or measures adopted by those bodies which then become acts on the part of the State, necessitated by those obligations of membership, the obligations of membership never entail mandatory direction to the State to carry out its duty of applying or implementing laws, acts or measures by any particular legal procedure applicable within the national law of the State. It is, therefore, submitted that the choice purporting to be vested in the minister by s. 3(2), for the purpose of enabling s. 2 of the Act to have full effect, to make regulations which include the repealing or amending or modifying of a statute of the Oireachtas, cannot be an act done or a measure adopted by the State which is necessitated by the obligations of membership. All that is necessitated, it is urged, is the implementation, the method of it is a choice to be made by the State within its own national law framework, and must be consistent with the Constitution.

The submissions of the respondents

The respondents made to the claim for a declaration of constitutional invalidity of s. 3(2) a number of submissions in the alternative. Some of those were directed to and interwoven with the issues which arose in this case with regard to the validity of the statutory instruments actually made.

The primary and fundamental response to the claim of invalidity may, however, be summarised as follows. It cannot be disputed that upon joining the communities and subsequently joining the union, the State took upon itself an obligation to apply and implement fully and efficiently and with expedition laws enacted, acts done or measures adopted by the communities or, subsequently, by the union. That obligation fell into a broad necessity for two separate actions. One was in the case where laws enacted or acts done by the communities or union were done according to community law, in such a fashion as to have direct application within the State. In those instances significant minor administrative regulations may be necessary to facilitate the entry of such legal provisions into the legal structure of the State, carrying with them, of course, a primacy over any conflicting or inconsistent national legal principles or provisions. In such instances, it is said, as one example at least, the repeal, amendment or modification of any existing law by a simple ministerial regulation would be a strict necessity arising from the obligations of the State as a member of the community and union. In other instances it is urged where directives implemented by the State the terms of such directives may be sufficiently specific and clear to require simple administrative application, something which would be again, appropriately done by regulation.

In these circumstances it is urged that the entire of the Act of 1972, which has subsequently been amended, is necessitated by the obligations of the State to the community, and now to the union. No provision of the Constitution, therefore, it is submitted, including in particular, Article 15.2, can be brought to bear on the provisions of that Act so as to invalidate any part of it.

The decision

The court has considered these submissions and has come to the following conclusions.

1. The power to make regulations contained in s. 3(1) of the Act of 1972 is exclusively confined to the making of regulations for one purpose, and one purpose only, that of enabling s. 2 of the Act to have full effect. S. 2 of the Act which provides for the application of the community law and acts as binding on the State and as part of the domestic law subject to conditions laid down in the treaty which, of course, include its primacy, is the major or fundamental obligation necessitated by membership of the community. The power of regulation-making, therefore, contained in s. 3 is prima facie a power which is part of the necessary machinery which became a duty of the State upon its joining the community and therefore necessitated by that membership.

The court is satisfied that, having regard to the number of community laws, acts done and measures adopted which either have to be facilitated in their direct application to the law of the State or have to be implemented by appropriate action into the law of the State, the obligation of membership would necessitate facilitating of these activities, in some instances, at least, and possibly in a great majority of instances, by the making of ministerial regulations rather than
legislation of the Oireachtas.

The court is accordingly satisfied that the power to make regulations in the form in which it is contained in s. 3(2) of the Act of 1972 is necessitated by the obligations of membership by the State of the communities and now of the union and is therefore by virtue of. Article 29.4.3°, 4° and 5° immune from constitutional challenge.

In so far as it may be possible to point to hypothetical instances of certain types of laws, measures or acts of the community or union which in their implementation or application within the national law might not, as to the method of implementation or application, be necessarily carried out by ministerial regulation, but rather should have been carried out by enactment of law by the Oireachtas, the court is satisfied, without deciding that such instances do occur, that the principles laid down by this Court in the decision of the East Donegal Co-Operative Livestock Marts Ltd. v. Attorney General [1970] IR 317 must be applied to the construction of the impugned subsection in the manner in which it was applied by the decision of this Court in Harvey v. Minister for Social Welfare to the construction of the section of the statute impugned in that case, namely, s. 75 of the Social Welfare Act 1952. That principle is that it must be implied that the making of regulations by the minister, as is permitted by the section, is intended by the Oireachtas to be conducted in accordance with the principles of constitutional justice, and therefore that it is to be implied that the minister shall not in exercising the power of making regulations pursuant to the section, contravene any provisions of the Constitution.

If therefore in such an instance challenge were to be made to the validity of a ministerial regulation having regard to the absence of necessity for it to be carried out by regulation instead of legislation and having regard to the nature of the content of such regulation it would have to be a challenge made on the basis that the regulation was invalid as ultra vires being an unconstitutional exercise by the minister of the power constitutionally conferred upon him by the section.

Having reached the conclusion that the challenge to the constitutional validity of this subsection has not been established, and the court satisfied that the subsection is invalid, having regard to the Constitution, it is not appropriate for the court to deal with any of the alternative submissions in defence of the constitutional validity of the subsection which were put forward on behalf of the appellants, since those are involved in other aspects of this appeal, namely, the challenge to the validity of the statutory instruments which have been made by the minister in pursuance of s. 3 of the Act of 1972.

Such statutory instruments are not laws within the meaning of Article 34.4.5° of the Constitution and, therefore, may be the subject matter of separate judgments.

BLAYNEY J (Finlay CJ, O'Flaherty and Egan JJ concurring): 

On 24 August 1992 the respondent was served with 20 District Court summonses relating to offences under the European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations 1988 (SI No. 218 of 1988) and the European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations 1990 (SI No.171 of 1990). The offences were alleged to have been committed on 27 March 1991, being the date on which a number of officers of the Department of Agriculture, acting on the authority of a search warrant granted by the District Court pursuant to article 16 of the 1988 Regulations, had carried out a search of the respondent's Baptist Grange, Lisronagh, Clonmel in the County of Tipperary.

The respondent immediately applied for and was granted leave to seek by way of judicial review the following reliefs:

1. A declaration that the 1988 and 1990 Regulations are ultra vires and void.
2. A declaration that the provisions of s. 3(1) and s. 3(2) of the European Communities Act 1972 are contrary to the Constitution of Ireland and are void. 
3. An order of certiorari quashing the search warrant granted by the District Court pursuant to article 16 of the 1988 Regulations.
4. An order of prohibition restraining the Minister for Agriculture from proceeding with the 20 summonses issued against the respondent.

The motion seeking these reliefs was heard by Johnson J and by order dated 1 April 1993 it was declared 'that such portion of s. 3(2) of the European Communities Act 1972 which entitles a minister by regulation to repeal or amend or apply, with or without modification, other law exclusive of that of the said Act is unconstitutional'. The minister appealed against that order and during the hearing the court accepted that it would deal not only with the constitutional issue but also with the other reliefs which had been sought in the High Court but in respect of which no order had been made.

The constitutional issue having been dealt with in the Decision of the Court which has just been pronounced by the Chief Justice, what remains to be considered is the other reliefs which are claimed and these were narrowed down in the course of the argument to a single issue: whether the 1988 and 1990 Regulations are ultra vires the Minister for Agriculture and Food under s. 3 of the European Communities Act 1972 in so far as they authorise the District Court to grant a search warrant and permit a summons to be brought in the District Court within two years of the commission of the offence notwithstanding s. 10(4) of the Petty Sessions (Ireland) Act 1851. Mr Hogan, on behalf of the respondent, stated that he did not take objection to any of the other provisions of the regulations. His sole claim, accordingly, is that article 16 of the 1988 Regulations, which is the article authorising the issue of search warrants by the District Court, and article 32(8) of the 1988 Regulations and article 11(4) the 1990 Regulations, both of which provide the two year time limit for issuing summonses, are ultra vires.

The law 

The relevant law to be considered is the same as had to be considered on the constitutional issue but it would probably be helpful if I were to set it out again: 

1. Article 189 of the Treaty of Rome:

A directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods.

2. Article 29.45° of the Constitution:

No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the communities, or by institutions thereof, or by bodies competent under the treaties establishing the communities, from having the force of law in the State.

3. European Communities Act 1972: 

S.2:

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

S.3:

(1) A minister of state may make regulations for enabling s. 2 of this Act to have full effect.
(2) Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying with or without modification, other law, exclusive of this Act).

The submissions made in the course of the hearing were directed both to the constitutionality of the impugned provision in s. 3(2) of the 1972 Act and to the issue with which this judgment is concerned and it would be rather difficult to segregate them. Rather than attempt to do so I propose to proceed directly to the question that has to be addressed and I will refer to the different submissions as occasion arises.

In considering whether the two statutory instruments are ultra vires, the first thing that has to be done is to see exactly what power the minister is given by s. 3 of the 1972 Act. The power is a very wide one. It is to enable s. 2 of the Act to have full effect and since that section provides that ‘the treaties governing the European Communities and the existing and future acts adopted by institutions of those communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties’ the relevant power of the minister in the context of the present case is to ensure that the EEC directives referred to in the two statutory instruments are part of our domestic law under the conditions laid down in the treaties. Furthermore, under s. 3(2), the minister has express power to include in the regulations incidental, supplementary and consequential provisions as appear to him to be necessary for the purposes of the regulations 'including provisions repealing, amending or applying, with or without modification, other law, exclusive of the 1972 Act'.

These being the powers of the minister, had he power to include in the regulations the provision authorising the District Court to grant a search warrant, and the provision allowing a period of two years for instituting prosecutions for offences? The answer in my opinion clearly is that he had such power provided that it was necessary for the purpose of giving effect to the directives. Accordingly the directives have to be looked at to see if these provisions are necessary for their implementation and when this is done it becomes quite clear that they are.

I start with the power given to the District Court to issue a search warrant. This is clearly required by some of the provisions of Council Directive 85/358/EEC of 16 July 1985 which is one of the directives implemented by the 1988 Regulations. Two of the recitals in the preamble to the directive are as follows:

Whereas provisions should be made for the official taking of samples at the slaughterhouse; whereas, furthermore, where there is a justified suspicion of infringement, provision should be made for the possibility [of] taking such samples at the farm of origin;
whereas, where the presence of prohibited substances or of the residues of such substances is confirmed, an investigation should be made at the farm of origin in order to exclude the meat in question from human and animal consumption and to place the prohibited substances under official control.

The relevant articles of the directive provide as follows:

Article 1: 
The member states shall ensure that official on-the-spot random controls are made on the substances referred to in Directive 81/602/EEC at the manufacturing, handling, storage, transport, distribution and sales stages for the presence of prohibited substances and veterinary pharmaceutical preparations containing prohibited substances which may be intended to be administered to animals for fattening purposes.

Article 3:
Member states shall ensure that:
1. Where there is justified suspicion of an infringement, the competent department make or arrange to have made:
-random controls on animals on their farms of origin, particularly in order to detect traces of implants;
-an official control for the presence of the substances the use of which is prohibited on farms where animals are reared, kept or fattened;
such controls may include the official taking of samples;
2. Random samples are taken from animals from fattening farms.

Article 5 then provides for the samples referred to in article 3 to be analysed in a laboratory approved by the competent authorities.

Finally, article 6 provides as follows:

1. Where the analysis referred to in Article 5 confirms the presence of prohibited substances or of residues either exceeding the maximum natural physiologic levels for the authorised substances or proving that authorised substances hay been used abusively, the competent authority shall be informed immediately of:
(a) All the particulars needed to identify the animal and its farm of origin. These particulars shall be determined in accordance with the procedure laid down in article 10.
(b) The result of the analysis.
2. The competent authorities shall then ensure that
(a) An investigation is made at the farm of origin to determine the reason for the presence of hormone residues;
(b) An investigation of the source or sources of the substance concerned is made as necessary, at the manufacturing, handling, storage, transport, distribution or sales stage.

It is clear that these provisions could not be implemented without creating a power to enable a compulsory search to be made of farms where animals are kept. It follows that the minister had power to include in the 1988 Regulations clause 16 which gives the District Court power to issue search warrants.

As regards the two year period for instituting proceedings for an offence under the regulations, it is relevant to note firstly that no objection was taken to the fact that the regulations create a number of offences. It is accordingly accepted by counsel for the respondent that this was required for the implementation of the relevant directives. And it must follow logically that the implementation required in addition that the offences could be effectively prosecuted. So the regulations had to be in a form to enable this to be done and if it was necessary for this purpose to allow a period of two years the minister clearly had power to allow such a period.

The only evidence on this point, which is uncontested, is that of Ms Maureen Waters, an assistant principal of the Department of Agriculture and Food. In an affidavit sworn on 19 February 1993 she deals in detail with the unavoidable delays in the investigation of offences under the regulations by reason of the necessity for analyses to be carried out in the State Laboratory and says that experience ‘had shown that in carrying out the type of investigation necessary having regard to the inquiries which would be required and the possible need to avail of the very sophisticated analytical procedures which had waiting lists for the service the six-month statutory period for instituting proceedings would not be met in many cases’.

She then goes on to deal with other possible causes of delay in the final paragraph of her affidavit:

4. In particular the directives require investigations to be carried out in more than one member state if it is suspected that the offence may have connections outside the State where initially detected and organising the necessary co-operation from another State may be time-consuming. For these reasons an opinion was formed that in order to fully implement the directives to the extent of exercising sanctions against offenders and to determining the source of the problem (where possible) that it was necessary to extend the period during which proceedings may be instituted. Accordingly recourse was made to the enabling power in s. 3(2) of the European Communities Act 1972 to provide that the time limit in s. 10(4) of the Petty Sessions (Ireland) Act 1851 would not apply and to substitute a two year period in its place.

It is quite clear from Ms Waters' affidavit that if the power of prosecution given in the regulation was to be effective, the six-month period was too short and so it was necessary to extend it. It follows that the minister had power to provide for a longer period and so had power to extend the six months to two years.

It was submitted by Mr Hogan that there was nothing in the directive which expressly required a two-year time limit and for that reason it was not justified. I reject that submission. The directive clearly required, as Mr Hogan accepted, that offences had to be created and obviously, as I said earlier, it had to be possible for these offences to be effectively prosecuted. Accordingly, the implementation of the directive required that the regulation should provide for an adequate time for the preparation of the prosecutions. It was not necessary that the directive should itself fix a time. It was a matter for the State to decide on the length of time required to enable the prosecution to be brought and that is what the minister has done in providing for a period of two years.

Mr Hogan also submitted that s. 10 of the 1851 Act could not be amended except by statute. The Decision of the Court already delivered has upheld the constitutional validity of the part of s. 3(2) of the 1972 Act which gives the minister express power to include in a regulation a provision amending other law. In so far therefore as this submission may be construed as meaning that the portion of the regulation amending s. 10 of the 1851 Act is invalid, it seems to me that it should be rejected rejected for the following reasons.

It is well established that community law takes precedence over our domestic law. Where they are in conflict, it is the community law that prevails. See SA v. La Comercial Internacional de Alimentacion SA Case C-106/89 [1990] ECR 1- 4135 and Francovich v. Italy Case C-6, C-9/90 [1991] ECR 1-5357. The relevant directives here were binding on the State, from the moment they were adopted, 'as to the result to be achieved'. One result to be achieved clearly was the creation of effective sanctions for the enforcement of the measures contained in the directives. So the State was bound to introduce effective sanctions, and if this necessitated adopting a measure which impliedly amended an existing statute, that measure would prevail over the statute because it was in substance a measure of community law. It is only in form that it is part of the domestic law. It derives its force from the directive which is binding on the State as to the results to be achieved. Such is my opinion of the character of article 31(8) of the 1988 regulations providing for the two-year period for instituting prosecutions.

Finally, I would not accept Mr Hogan's submission that merely because Article 189 of the Treaty of Rome leaves to the State the choice of the form and methods of implementing a directive, what is done by way of implementation is not necessitated by the State's obligations of membership and so may be subjected to constitutional challenge. The article obliges the State to implement the directive and equally obliges the State, in exercise of the discretion given to it, to choose an appropriate method of implementation. If the State were free not implement the directive, then clearly, if it were to do so, it would be a voluntary act not necessitated by the obligations of membership and would not be protected by Article 29.4.5° of the Constitution. But the State is not free. It is obliged to implement the directive and so is obliged to choose a method of implementation and, provided the method it chooses is appropriate for the purpose of satisfying the obligation of the State and the measures it incorporates do not go beyond what is required to implement the directive, it is correctly categorised as being necessitated by the directive. In any instance where the method was not appropriate, or its measures went beyond what was required, it would not be necessitated and would be open to constitutional challenge. This not such a case.

For all these reasons I would refuse all the relief sought by the respondent by way of judicial review.

DENHAM J (Finlay CJ, O'Flaherty and Egan JJ concurring):

	The court in the decision which has just been pronounced by the Chief Justice having rejected the constitutional challenge to the validity of s. 3(2) of the European Communities Act 1972 this judgment deals with the remaining issue as to the validity of the regulations made by the minister pursuant to that section.

The issue for determination is whether regulations, European Communities (Control of Oestrogenic, Androgenic, Gestagenic and Thyrostatic Substances) Regulations 1988 (SI No. 218 of 1988) and European Communities (Control of Veterinary Medicinal Products and their Residues) Regulations 1990 (SI No. 218 of 1988) are ultra vires the powers of the Minister for Agriculture and Food under s. 3 European Communities Act 1972 insofar as they authorise procedure for the granting of a search warrant, and insofar as they extend the time within which a summons can be sought thereby amending s. 10(4) Petty Sessions Ireland Act 1851.

The facts and issues have been fully set out by the Chief Justice and Blayney J. The directives relevant to this case are Council Directive No. 81/602/EEC of 31 July 1981, Council Directive No. 81/851/EEC of28 September 1981 (insofar as it relates to substances with oestrogenic, androgenic, gestagenic or thyrostatic action), Council Directive No. 85/358/EEC of 16 July 1985, Council Directive No. 86/469/EEC of 16 September 1986, Council Directive No. 88/146/EEC of 7 March 1988 and Council Directive No. 88/299/EEC of 17 May 1988. S. 3 European Communities Act 1972 and the said directives are the basis upon which the minister made the regulations in issue in this case.

Law

The sources of the law in issue are both national, constitutional and statutory, and European, however all are part of the domestic law. The relevant sections have been set out previously but for analysis I re-state them.

(i) Bunreacht na hEireann. Article 15.2.1°:

The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State. [Hereinafter referred to as Article 15.2.1°.]

(ii) Bunreacht na hEireann, Article 29.4:

3. The State may become a member of the European Coal and Steel Community (established by Treaty signed at Paris on 18 April 1951), the European Economic Community (established by treaty signed at Rome on 25 March 1957) and the European Atomic Energy Community (established by treaty signed at Rome on 25 March 1957).
The State may ratify the Single European Act (signed on behalf of the member states of the communities at Luxembourg on 17 February 1986, and at the Hague on 28 February 1986).
4. The State may ratify the Treaty on European Union signed at Maastricht on 7 February 1992, and may become a member of that union.
5. No provision of this Constitution invalidates laws enacted, acts done or measures adopted by the State which are necessitated by the obligations of membership of the European Union or of the communities, or prevents laws enacted, acts done or measures adopted by the European Union or by the communities, or by institutions thereof, or by bodies competent under the treaties establishing the communities, from having the force of law in the State.

(iii) European Communities Act 1972.

S. 2: From 1 January 1973, the treaties governing the European Communities and the existing and future acts adopted by the institutions of those communities shall be binding on the State and shall be part of the domestic law thereof under the conditions laid down in those treaties. [Hereinafter referred to as s. 2 of the 1972 Act].

S. 3(1): A minister of state may make regulations for enabling s. 2 of this Act to have full effect.
S. 3(2): Regulations under this section may contain such incidental, supplementary and consequential provisions as appear to the minister making the regulations to be necessary for the purposes of the regulations (including provisions repealing, amending or applying, with or without modification, other law, exclusive of this Act). [Hereinafter referred to as s. 3(1) or s. 3(2) of the 1972 Act].

(iv) Treaty of Rome, Article 5:

Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising on this treaty or resulting from action taken by the institutions of the community. They shall facilitate the achievement of the community's tasks.
They shall abstain from any measure which could jeopardise the attainment of the objectives of this treaty'. [Hereinafter referred to as Article 5].

(v) Treaty of Rome, Article 189:

In order to carry out their task the council and the commission shall, in accordance with the provisions of this treaty, make regulations, issue directives, take decisions, make recommendations or deliver opinions.
A regulation shall have general application, it shall be binding in its entirety and directly applicable in all member states.
A directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods.... [Hereinafter referred to as Article 189].

This case is not about a balance of power between community authorities and national authorities. It was accepted by the parties that community law has primacy.

The issue to be determined is the balance within the national forum of s. 2 and s. 3 of the 1972 Act, Article 15.2 and Article 29.4.5 of Bunreacht na hÉireann and Articles 5 and 189 of the Treaty of Rome. Thus the kernel is the word 'necessitated' in Article 29.4.5° and the 'choice' afforded in Article 189.

Facts

On the facts of the case there was no contest. There was no replying affidavit to either of the affidavits filed by the State.

The State set out facts which established that under the directive an extension of time within which to apply for a summons was necessary, as was a power to search.

I am satisfied that on the facts of the case, as set out by the State and not controverted by the applicant/respondent, it was necessary in view of the substance of the directive to both extend time within which a summons could be issued and to authorise search warrants.

Thus, while, in general, facts may be judicially reviewable they were not in contest in this case.

'Necessitated'

It is clear that on the facts of this case it was necessary (a) to amend Petty Sessions (Ireland) Act 1851 as to the time limits within which to apply for a summons and (b) to create a right of search.

There is no doubt that these two factors must be brought into Irish domestic law under its obligations under community law.

However, the fact that they were 'necessitated' under the directive to be incorporated into national law is not the end of the matter.

‘Choice’

Article 189 leaves to the national authorities the choice of form and methods. In choosing the form and method the minister has to act in accordance with the law and the Constitution. Thus the minister must balance the relevant articles of the Constitution, which in this case are Article 15.2 and Article 29.4.5°. His choice, under Article 189, must be in accordance with national law, the Constitution and community law. His decision is judicially reviewable.

The fact that the substance of the directive is binding as to the result to be achieved, and that a minister must initiate an enabling national process, does not determine the issue of choice of method. Whereas the State is required to implement the substance of the directive into law, the State is not required by community law to choose any particular form or method.

‘Form or Method’

In determining the form or method the State, minister, must have due regard to the Constitution, both Article 15.2 and Article 29.4.5°.

Under Bunreacht na hEireann as enacted in 1937 the sole and exclusive power of making law for the State was vested in the Oireachtas. This is a fundamental aspect of democratic government, based on the separation of powers.

That basic tenet has been qualified by membership of the European community which has established other law making authorities. Inter alia it has established law making in the form of directives, which are binding on the State, as to the result to be achieved, leaving to the national authorities the choice of form and methods.

Were the Constitution still in its 1937 form the State, minister, would have no choice- he would have to initiate a process of legislation through the Oireachtas. However, the Constitution has been amended, and community law has been introduced to the domestic law, and the situation is not now governed by Article 15.2 alone. Article 15.2 cannot be read in isolation.

The term 'necessitated' in Article 29.4.5° together with Article 189 of the treaty make it clear that in balancing the two the mere fact that the substance in laws enacted, acts done or measures adopted, is necessary to be incorporated into domestic Irish law, is not the end of the matter.

The term 'necessitated' is relevant to the choice of method, however membership has not itself obligated a special form and method of implementation. Article 15.2 and the choice of form and methods of Article 189 must then be read together with Article 29.4.5°.

Article 29.4.5° refers to 'laws enacted, acts done or measures adopted.' Clearly this refers to legislation through the Oireachtas and other methods of implementation, including the two sets of regulations herein.

The minister made the regulations under s. 3 of the 1972 Act. The directive is 'binding' on the State as to the result to be achieved. The principles and policies are set out in the directive. Under s. 3(2) the minister's regulations may contain such incidental, supplementary and consequential provisions as appear to the minister to be necessary for the purposes of the regulations, including amending an Act (exclusive of the 1972 Act). Clearly incidental, supplementary and consequential provisions are not foundation principles and policies.

If the directive left to the national authority matters of principle or policy to be determined then the 'choice' of the minister would require legislation by the Oireachtas. But where there is no case made that principles or policies have to be determined by the national authority, where the situation is that the principles and policies were determined in the directive, then legislation by a delegated form, by regulation, is a valid choice. The fact that an Act of the Oireachtas has been affected by the policy in a directive, is a 'result to be achieved' wherein there is now no choice between the policy and the national Act. The policy of the directive must succeed. Thus where there is in fact no choice on a policy or a principle it is a matter appropriate for delegated legislation. If the directive or the minister envisaged any choice of principle or policy then it would require legislation by the Oireachtas.

The appropriate test is as set out by O'Higgins CJ in Cityview Press Ltd v. An Chomhairle Oiliúna [1980] IR 381, 399, where he stated:

In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the permitted limits -if the law is laid down in the statute and details only are filled in or completed by the designated minister or subordinate body -there is no unauthorised delegation of legislative power.

Applying the test to this situation the test is whether the ministerial regulations under s. 3 of the 1972 Act are more than the mere giving effect to principles and policies of the said Act and the directives which are part of domestic law as to the result to be achieved.

If the regulations contain material exceeding the policies and principles of the directives then they are not authorised by the directives and would not be valid under s. 3 unless the material was incidental, supplementary or consequential. In those circumstances if they were not incidental, supplementary or consequential the regulations would be an exercise of legislative power by an authority not so permitted under the Constitution. If it be within the permitted limits, if the policy is laid down in the directive and details only are filled in or completed by the regulations, there is no unauthorised delegation of legislative power.

Democracy

The separation of powers is a fundamental principle of Bunreacht na hÉireann. The power to legislate for the State is solely within the Oireachtas- save where that authority has been assigned under the Constitution to community authorities and organs of the State to act in accordance with community law as integrated into national law.

There was no question in this case that the principles and policies of the directives were not within the treaties.

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

That being the case the role of the Oireachtas in such a situation would be sterile. To require the Oireachtas to legislate would be artificial. It would be able solely to have a debate as to what has already been decided, which debate would act as a source of information. Such a sterile debate would take up Dáil and Senate time and act only as a window on community directives for the members of the Oireachtas and the nation. That is not a role envisaged for the Oireachtas in the Constitution.

Consequently, solely because the minister is making a regulation which repeals a statute, does not of itself invalidate the regulation which as a vehicle, as a choice, can be intra vires the Constitution under Article 29.4. To say that a regulation breaches Article 15.2.1° simply because it repeals or amends a statute is to hold the false premise that the minister is determining principles or policy.

The regulations in this case being within the policies and principles of the directives the substance of the regulation is within the directives. There are no policies and principles enunciated in the regulations that are not within the directives. There are no policies and principles in the regulation additional to the directive.

Consequently, to state that such an action- effectively an administrative implementation of policies and principles of a directive- is superior legislation as envisaged in Article 15.2.1° -is a misnomer. Superior legislation involves a decision on policies and principles by the legislature and an implementation thereof in the form of a statute. Here what is at issue in essence is subordinate legislation as delegated under community law.

No constitutional right, other than the process under Article 15.2, of Bunreacht na hÉireann was submitted as part of the argument, or as being in issue. Nor was any issue raised as to the validity of the directives and their principles and policies under the treaties.

I am satisfied that the regulations in issue in this case were not ultra vires the power of the Minister for Agriculture and Food under s. 3 European Communities Act 1972 insofar as they authorised the procedure for the granting of the search warrant, and insofar as they extended time thereby amending s. 10(4) Petty Sessions (Ireland) Act 1851 being as they were implementations of policies and principles in the relevant directives.

I am in agreement with the judgment of Blayney J and consequently I would allow the appeal.