The Gazette 1993

GAZETTE

SEPTEMBER 1993

the State's attempt to equate a s.3 order with an act done or measure adopted by the State 'necessitated' by its obligations of niembership. Stripped of their constitutional sunshield, the impugned statutory instruments burnt freely in the constitutional glare of the separation of powers doctrine radiating particularly from the Supreme Court's judgment in City View Press v AnCo. w A parallel was drawn with McDaid v Sheehy, where an excise duty order of j a legislative nature made pursuant to | the Imposition of Duties Act, 1957 | was challenged." However, that order was subsequently confirmed, thus respecting Art. 15.2, by s.46 of the Finance Act, 1976. In contrast in Meagher , the amendment of the original s.4 control system precluded the possibility for such positive legislative confirmation. Johnson J ruled that the Constitution required the f relevant minister to determine the j appropriate approach to the transposition of each directive into Irish law. This determination would depend on the nature of the legal effects of transposition. Thus, if the amendment of existing laws is involved, s/he may proceed only by way of Oireachtas legislation. 12 The cogency of this approach has been questioned on the basis of EC law and practicality. 13 The EC Court of Justice has stressed that directives do not have to be transposed by way of domestic legislation but that transposition can also be effected through other binding legal instruments. 14 Given the number of directives involved and accounting for those of an administrative nature not requiring legislative amendments (which can thus be implemented by ministerial order under the Meagher rationale), it may not be possible for the Oireachtas, even sitting for longer each year than at present, to fulfil our Community obligation of timely transposition. It has been suggested that an omnibus statute could be used to transpose simultaneously in one instrument those directives involving legislative amendments" but this ignores the fiasco of the single confirmation measure enacted under Commentary

s.4 of the original European Communities Act, 1972."

No such examination took place with regard to the directives behind the statutory instruments that were challenged in the Meagher case. Should the Supreme Court reject the more accommodating approach of Murphy J., the State is likely to engage in a damage limitation exercise as hundreds of statutory instruments | adopted over many years would be at stake. The Supreme Court may be pressed to invoke words, such as those of Henchy J. in Murphy v Attorney- General that, '...considerations of economic necessity, practical convenience, public policy, the equity of the case, and suchlike matters, may require that force and effect be given in certain cases to transactions carried out under the void statute.' 20 In the circumstance raised by the Meagher case, one might add to this list the need to comply with our Community obligations. The application of the maxim communis error facit jus may be more warranted ! here than ever before. i Postscript Since this article was written the Oireachtas has enacted the European Communities (Amendment) Act, ! 1993. 21 From the point of view of the scope of ministerial power under s.3 of the European Communities Act, 1972, s.5 of the 1993 Act is designed to I dispel the confusion concerning the validity of existing regulations created by the High Court decision in Meagher. Pending the outcome of the Supreme Court appeal and without accepting the veracity of the High Court decision, 22 s.5(l)-(2) operate to I confirm, in so far as is constitutionally possible, all such regulations made prior to the passing of the 1993 Act. 23 The specific issue of the time limit governing, pursuant to s.l0(4) of the ! Petty Sessions (Ireland) Act, 1851, the institution of summary criminal proceedings is addressed by s.5(4). In respect of offences committed after the passing of the 1993 Act and created by s.3 regulations made prior to its enactment, a two year period for the commencement of proceedings is furnished thus removing any 1

Perhaps the most surprising aspect of the Meagher judgment is its failure to address earlier High Court authorities in which, although s.3 was interpreted, its constitutionality was not questioned. In Lawlor v Minister for Agriculture [1988] ILRM 400, Murphy J., having already decided that the regulations at issue did not infringe Art. 40.3 and Art. 43 of the Constitution, opined that they were also protected by Art. 29.4.3. 17 Despite unfortunately describing the scope of the word 'necessitated' as covering 'acts or measures consequent upon membership' (emphasis added), thus confusing the actual with the original constitutional wording, it is arguable that he intended to include all measures the adoption of which is, in one form or another, incumbent on the State. 18 This view finds support in his later judgment in Greene v Minister for Agriculture [1990] ILRM 364, where he found that a condition, imposed by the defendant in implementing a directive concerning farming in disadvantaged areas, was so far-reaching and detached from the results to be achieved thereby that it could not be said to be 'necessitated' by our obligations of membership. I It is submitted that this judgment is Member States with some degree of flexibility at the implementation stage and that, as this flexibility is an inherent part of the Community law imperative thereunder, Irish implementing measures should normally be protected by Art. 29.4.3. In other words the constitutional provision should be interpreted in the light of the nature of EC directives whose incorporation into Irish law it was designed to facilitate. In order to I give effect to the legislative intention underlying the use of 'necessitated', j should the particular directive confer a wide-ranging choice or should ministers attempt, in the relevant implementing measure, to misuse their powers by including matters extraneous to or linked only indirectly with its subject-matter, the screen of Art. 29.4.3 ought to be inoperative. 19 authority for the view that EC directives by their nature leave

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