The Gazette 1994

GAZETTE

MWH APRIL 1994

required the creation of compulsory search powers and criminal offences for punishing those farmers who persisted with the retrograde practice. Blayney J also felt that the effective implementation of the aforesaid objective required '. . . an adequate time for the preparation of the prosecutions'. The precise time limit was a matter for the State to decide and it had done so here through Art. 31(8) of the impugned regulations. Where such measures are necessitated for the effective implementation of the directive, they will be national in form only and, thus, will benefit from the Art. 29.4.5 constitutionality immunity. Denham J undertakes a wider-ranging analysis of the nature of EC directives and of superior Oireachtas legislation envisaged under Art. 15.2.1. Once the subject-matter of a directive is within the scope of the legislative power conferred by the appropriate treaty, its implementation will be legally 'necessitated' within the meaning of the Constitution. If the directive leaves no choice relating to issues of principle and/or policy to the national authorities, a minister may implement it through regulation adopted pursuant to s.3, even where the regulation involves the repeal/amendment of a prior statute because '. . . the policy of the directive must succeed'. She cites with approval the well-known test formulated by O'Higgins CJ in City View Press v AnCo as the means of distinguishing those directives which permit policy choices from those which do not."' Thus, where a national implementing measure would comprise little more than filling in the details set out in the directive: "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 Dail and Senate time and act only as a window on Community directives for the members of the Oireachtas and the nation. That is not the role envisaged for the Oireachtas in the Constitution."

While it is difficult to quibble with the force of this analysis, it should not be taken as a justification for ministers and, arguably, the new Joint Committee on Foreign Affairs, failing to publicise fully the content and anticipated effect of such ministers' orders.

require legislation. It is j difficult however to imagine a hypothetical situation where such a substantive distinction could be drawn between the respective approaches of Blayney and Denham JJ (presumably the other members of the Supreme Court in agreeing with both judges anticipated no 1 such complications). It is submitted i therefore that, despite their I formal differences, they will in i practice be applied concurrently. One criticism which might be j levied at the Supreme Court's judgment is that it rejuvenates a separation of powers doctrine which has long outlived its usefulness ... that it rejuvenates a separation of powers doctrine which has long outlived its usefulness and that, consequently, an opportunity to move j away from City View Press v AnCo was lost. Only one statutory provision j in Ireland has fallen at the hands of the said doctrine, while in the USA the courts have always been able to construe impugned legislative provisions as sufficiently precise to be valid. 11 This has led many American commentators to question the continued relevance of the doctrine in modern constitutional law. While provisions like those contained in ss 1-2 of the Imposition of Duties Act, j 1957 are amenable to its application, j this may not be the case for most | national legislation and Community j directives, the latter which, while Í setting out policy objectives, may j still leave many matters such as the | when, where, how, and extent of their i application to the Member States. It might be more realistic to recognise that in today's complex world it is reasonable to delegate such matters and that the focus, when the vires of resultant statutory instruments is impugned, should be on the reasonableness or proportionality of the exercise by the subordinate law- maker of its/his/her powers and not on a metaphysical examination of One criticism which might be levied 1 at the Supreme Court's judgment is

Analysis

The Supreme Court has not abdicated its duty to interpret autonomously the scope of either the original Art. 29.5.3 or its new successor, Art 29.4.5. 12 It has been argued that the Supreme Court's assessment of the obligations of membership which justify s.3(2) is inadequate." According to this argument the interpretation of what is necessitated by the obligations j of membership ought always to be seen exclusively as a question of national constitutional law and ought thus in Meagher to have been so determined. It is submitted that the Supreme Court judgment does not deny the constitutional basis of the test but, rather, endeavours to interpret the Constitution in the light implemented fully and in a timely fashion. The Supreme Court has not abdicated its duty to interpret autonomously the scope of either the original Art. 29.5.3 or its new successor, Art 29.4.5. 12 It is arguable that the approach of Blayney J with its emphasis on appropriateness and effectiveness is somewhat more accommodating to government ministers that that of Denham J which emphasises democratic principles. One might tenably argue that in a less obvious case than Meagher , where the implementation of a directive involves the repeal/amendment of prior national legislation, to of the overriding Community imperative that directives be implement it in a certain but for argument's sake unanticipated (and presumably particularly efficacious) manner would go beyond the principles/ policies of the directive itself and would, thus,

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