The Gazette 1993

GAZETTE

SEPTEMBER 1993

Collins in, 'The Eleventh Amendment - Problems and Perspectives' (1992) 9 ILT 209. 4. The original draft of the amendment would have authorised measures adopted by the Irish authorities 'consequent on' membership of the Communities. This was attacked by opposition parties as being too imprecise. It was perceived as capable of protecting measures adopted by the Irish authorities on their own initiative dealing with economic or social matters affected by Community membership. John Temple Lang has stated that this revised wording was designed only to protect from constitutional challenge those national measures required to transpose EC directives into domestic law. 5. S.I. Nos. 218/88 & 171/90. 6. S.3(3) does not permit the adoption of orders creating indictable offences. This restriction was introduced during the debate in the Senate where it was argued that the ministerial power would otherwise be so extensive that it would be almost impossible to find, in judicial review proceedings, that a minister had acted ultra vires. See M. Robinson, 'The Irish European Communities Act 1972' (1973) 10 CMLRev 352. 7. See the amended s.4(l)(a) & (b) of the 1972 Act. 8. Art 15.2.1 provides that, '[t]he 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'. It could not be argued, given the nature of the Community itself and our accession thereto, that the exception to this principle contained in Art. 15.2.2 might be relevant. 9. See Hogan, loc. cit. 10. See [1980] IR 381 where, according to O'Higgins CJ, delegated legislation may amount to no more than 'a mere giving effect to principles and policies contained in the [parent] statute' @ p. 399. 11. [1991] IR 1 and discussed by D. Walsh in 'Legal and Constitutional Implications of Dail Financial Resolutions' (1991) 2 ILT 41. 12. It is not altogether clear where the logic of the Meagher case would stop. Suppose in future the EC institutions, in order to avoid enforcement difficulties such as those created by the Meagher case, adopt anti- angel dust measures by way of a regulation, which is automatically and immediately applicable in the national legal systems by virtue of Art 189(2) EEC, could defending counsel argue before the High Court that it has the power to investigate the propriety of such a regulatory approach? If the High Court took the view, say on the basis of the principle of subsidiarity due to be incorporated into the renamed EC Treaty by Art. G(2) of the Treaty on European Union, that the Community legislature should have proceeded by way of a directive but the Court of Justice, on a reference to it pursuant to Art. 177 EEC, disagreed, how would the former approach determine, for the purposes of applying the Constitution,

whether the regulation was 'necessitated' by our obligations of membership? 13. See the forceful arguments of D. Curtin in 'Some Reflections on European Community Law in Ireland' (1989) 11 DULJ 207 and, more generally, the views of Professor Casey in Constitutional Law in Ireland (2nd ed 1992) @ pp. 170- 171. 14. See, inter alia. Case 29/84 Commission v Germany [1985] ECR 1661, 1663. The transposition of directives by administrative action, such as ministerial circular, is, therefore, not acceptable. Thus in Browne v An Board Pleanala [1989] ILRM 865, Barron J. ruled that an environmental directive had not been properly implemented by a circular addressed to the planning authorities by the Dept, of the Environment. 15. See Hogan & Morgan and Whelan, loc. cit. Whilst the theoretical rationale behind the suggestion of enabling deputies and senators a more realistic opportunity of questioning ministers (some parliamentary time would have to be assigned to debating the statute whereas no such time is automatically allotted to debating statutory instruments), the extent of the take-up thereon in relation to more technical and complex directives is questionable. The usefulness of the exercise would also depend on the amount of time that could be allowed for debating what would undoubtedly be a lengthy list of measures. 16. M. Robinson, writing in 1973, pointed out that the text of the twenty-two ministerial regulations confirmed by the European Communities (Confirmation of Regulations) Act, 1973 had not even been circulated to deputies and senators at the time of its passage through the Oireachtas. This generated considerable criticism, particularly in the Senate, and the current procedure was introduced to allow the National Parliament a more effective role in supervising such regulations (emphasis added). See (1973) 10 CMLRev 467. 17. European Communities (Milk Levy) Regulations 1985, S.I. 416 of 1985. 18. See Reid, The Impact of Community Law on the Irish Constitution. (ICEL Pub. No. 17) @ p.13. 19. For a similar analysis, see Casey loc. cit. However, G Hogan has expressed the view that Murphy J.'s 'broad interpretation' of the word necessitated flies in the face of the parliamentary history of Art. 29.4.3. See, 'The Supreme Court and the Single European Act' (1987) XXII Ir. Jur.(n.s.) 55, 59-62. 20. [1982] IR 241, 322. 21. No. 30b of 1993 signed into law by the President on 20 July, 1993. 22. S. 5(3) expressly declares that the section is not to be construed as an acknowledgement that such regulations are constitutionally invalid. 23. Under s.5(5) the scope of the s.5( 1) is

i mp l i c a t i on of t he r e t r o a c t i ve a p p l i c a t i on of c r i m i n al r e s p o n s i b i l i t y.

S h o u ld t he S u p r e me C o u rt e n d o r se t he v i ew that s.3 of t he 1972 Act is u n c o n s t i t u t i o n al b ut limit p r o s p e c t i v e ly t he e f f e c ts of it r u l i n g, s.5 of t he 1 9 93 A c t will p r e s e r ve f or t he f u t u re all t he n u m e r o us r e g u l a t i o ns c o n c e r n ed t h us e n s u r i ng c o m p l i a n ce w i th o u r C o mm u n i ty l aw o b l i g a t i o n s. S h o u ld n o l i m i t a t i on b e p l a c ed o n t he s c o pe of its r u l i ng a legal v a c u um m a y a g a in a r i se as t he 1 9 93 A ct will h a v e p u r p o r t ed to c o n f i rm e x i s t i ng s t a t u t o ry o r d e rs d e c l a r ed i n v a l id ab initio by t he S u p r e me Co u r t. In e i t h er c a s e, n e w l e g i s l a t i ve p r o c e d u r es a l o ng t he lines s u g g e s t ed b y H o g a n a n d Wh e l a n will h a v e to b e f o u n d f o r the i mp l e m e n t a t i on of n ew E C d i r e c t i v e s. C l e a r ly t he o p t i mal s o l u t i on f o r t he S t a te w o u l d b e f o r t he C o u rt to a c c e pt t he m o r e liberal c o n c e pt of ' n e c e s s i t y' e s p o u s ed b y M u r p h y J. T h e o m n i b us c o n f i r m a t i on of e x i s t i ng r e g u l a t i o ns w o u l d c o v er t he f e w w h i ch m i g ht be u n a b le e v en to p a ss this m o r e f l e x i b le test a nd m i n i s t e rs c o u l d, w i th t he b e n e f it of i n f o r m ed legal a d v i c e, e s c h ew t he f u t u re a d o p t i on of i m p l e m e n t i ng m e a s u r es s u ch as t h o se i n v o l v ed in Green v Minister for Agriculture. References 1. High Court, unreported, 1 April 1993. 2. See Hogan & Morgan, Administrative Law in Ireland (2nd ed. 1991) @ pp 17-1 and A. Whelan, 'Art 29.3.4 and the Meaning of "Necessity" ' (1992) ISLRev 60. Other eminent commentators, such as Collins & O'Reilly, disagree. The latter argue that, as Art. 29.4.3 was enacted precisely to derogate from, inter alia, Art 15.2, a flexible approach ought to be adopted towards its interpretation. See "The Application of Community Law in Ireland" 1973-1989 (1990) 27 CMLRev 315, (1992) Irish Journal of European Law 38. 3. This sentence has been incorporated into a new subsection 4 to Art. 29.4 following the Eleventh Amendment of the Constitution Act, 1992. The new formula also refers to acts, etc., '...necessitated by the obligations of membership of the European Union...' created by the Treaty on European Union. The problems that this may create in practice for Ireland are discussed by A. *Noel Travers BCL, LLM (NUI), Dip AELS (Bruges), BL is a lecturer in law and Assistant Dean, Faculty of Law, at University College Dublin.

extended to any adaptations, amendments and revocations to such regulations effected by subsequent s.3 orders, legislation or ministerial instruments made under such legislation. •

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