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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> Kennedy -v- Attorney General & anor [2005] IESC 36 (31 May 2005)
URL: http://www.bailii.org/ie/cases/IESC/2005/S36.html
Cite as: [2005] IESC 36, [2005] 2 ILRM 401, [2007] 2 IR 45

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Judgment Title: Kennedy -v- Attorney General & anor

Neutral Citation: [2005] IESC 36

Supreme Court Record Number: 471/04

High Court Record Number: 2001 833 JR

Date of Delivery: 31/05/2005

Court: Supreme Court


Composition of Court: Murray C.J., Denham J., Hardiman J., Fennelly J., McCracken J.

Judgment by: Denham J.

Status of Judgment: Approved

Judgments by
Result
Concurring
Dissenting
Denham J.
Appeal dismissed - affirm High Court Order
Murray C.J., Hardiman J., McCracken J.
Fennelly J.
Appeal allowed - set aside High Court Order

Outcome: Dismiss


RECORD NO. 471/2004
APPLICANT/RESPONDENT
AND


THE ATTORNEY GENERAL,

MINISTER FOR THE MARINE AND NATURAL RESOURCES.


RESPONDENTS/APPELLANTS









THE SUPREME COURT
Record No. 471/2004
Murray C.J.
Denham J.
Hardiman J.
Fennelly J.
McCracken J.

BETWEEN
THOMAS KENNEDY
Applicant/Respondent
and
THE ATTORNEY GENERAL,
MINISTER FOR THE MARINE AND NATURAL RESOURCES.
Respondents/Appellants
Judgment delivered by Mr Justice Fennelly on 31st day of May, 2005.

I regret that I find myself unable to agree with the majority judgment of the Court delivered by Denham J that this appeal should be dismissed. Nonetheless, I gratefully adopt her comprehensive account of the facts, the history of the proceedings and the legal issues.
The High Court has declared the Mackerel (Licensing) Order, 1999 (“the Order”) to be ultra vires the power invoked by the second-named Respondent (“the Minister”) in making it. As I understand the conclusion of the majority judgment, it is that the Order was adopted in implementation of the Common Fisheries Policy (“CFP”) of the European Community, that the legislative scheme found in the Fisheries Acts as amended contains section 223A, under which the Order was adopted, and an alternative, section 224A. Denham J states that “it could not have been intended that s.223A would have been used to implement Community law, in light of s.224B.” It is further explained that:
In effect, the conclusion is that the Order could only have been adopted under section 223B.
The view of the learned High Court judge, O’Caoimh J was centrally based on his analysis of the way in which the Order relates to the CFP. At the commencement of the deciding part of his judgment, he said:
As counsel for the Minister has pointed out, it is difficult to discern the precise conclusion the learned trial judge reached on what he there called “the heart of the …case.” At one point, he stated that: “the provisions of conditions 8 and 9 are such as not to be in direct application of any Community provision but are measures adopted by the respondent Minister within the limits of his discretion insofar as they do not compromise the operation of Community law and, in particular, the Common Fisheries Policy.” On this basis, he might have been expected to have held the Order to be intra vires. However, at a later point, he decided that “the impugned measures were, in essence, directed to implementing Community policy, albeit within the ambit of the limited discretion vested in the State under the Council regulations referred to.” He continued: “Accordingly, while the impugned measures have the appearance of national measures they are, I believe, to be considered as falling within the terms of the Common Fisheries Policy and not in mere application of national policy.”
Apart altogether from whether either conclusion leads to the result that the Order is ultra vires the powers of the Minister, it is obvious that the interaction between Community and national competence was central to the decision of the High Court.
I have come to the conclusion that:

1. The Order falls within the scope of “measures of conservation of fish stocks and measures of rational exploitation of fisheries,” which defines the scope of the Minister’s power under section 223A; 2. The Order, while adopted within the framework of the CFP, was formulated within the area of discretion allotted under Community rules to the Member States; 3. The Order could not have been made pursuant to section 223B, as its terms would have had to have be “specified” in a Community act to comply with the requirements of that section;4. The decision of the majority of this Court in Browne v Attorney General and others does not determine that no Order can be made under section 223A, which involves giving effect to the discretionary power of a Member State.

I do not believe that there is any real controversy about the first proposition. Nonetheless, it is important to recognise that it was not part of the Applicant’s case, nor was it determined by the learned trial judge that the measures contained in the order were not capable of being “measures of conservation of fish stocks and measures of rational exploitation of fisheries.” Apart from the generality of those words, the section, which is set out in full in the judgment of Denham J, extends to regulating such matters as sea-fishing, fisheries, fishing boats and provides for the inclusion of “such incidental, supplementary and consequential provisions as the Minister considers appropriate.” I believe, therefore, that it is not in controversy that the Order could have been adopted under section 223A, were it not for the existence of section 223B. I will later refer to the affidavit of Mr James Lavelle of the Department of the Marine and Natural Resources, who explains the purpose of the Order and how it contributes to the statutory objective.
The second proposition is the crucial one. In order to address it, it is necessary to recall the relationship between the CFP and the powers of the Member States. Denham J has summarised many of the relevant provisions of Community law and I do not propose to repeat them.
That fisheries policy has for many years been a matter within the exclusive competence of the European Community is not in doubt. However, the Member States play an indispensable role in the execution of that policy. As in most areas of Community law and policy, the Community does not act through its own services. It neither has the resources, nor has it the function of carrying the policy into effect. Most importantly, of course, the Community has no policing arm and no criminal courts. Therefore, in the manner set out in some detail in the judgment of Denham J, the execution of Community policy depends almost entirely on the services of the Member States. Nowhere is this proposition more clearly borne out than in Council Regulation (EEC) No 2847/93 of 12 October 1993 establishing a control system applicable to the common fisheries policy.
This regulation, with others, comprises a complex system of control and management of fisheries. Member States are placed, in many instances, under express obligations. To cite but one example, each Member State is obliged to notify the Commission by computer transmission before the end of each month of the quantities of fish caught (Article 18). At the same time, and especially in respect of control, supervision and inspection measures, the Member States are usually required, for example, to “adopt provisions to verify compliance” (Article 24) and “detailed rules may be adopted…” (Article 26). There are specific instances in the complex of fisheries regulations where Member States are expressly permitted to adopt their own control and inspection measures. Perhaps most importantly, the Member States have power to allocate fish quotas among their own fishing fleets. All of this is expressed generally in Article 4(1):
The thirty fifth recital to the Regulation clearly delineates the respective responsibilities of the Community and the Member States by stating that it “does not affect national provisions on monitoring, which, while coming within its scope, go beyond its minimum provisions, provided that such national provisions are in conformity with Community law.”
Counsel for the Minister has, however, submitted that, in allocating responsibility in this way, the Council was reflecting longstanding jurisprudence of the Court of Justice as expressed in Joined cases 3, 4 and 6/76 Kramer [1976] ECR 1279 at paragraph 52:
I do not think it can be correct to go so far. Kramer was decided prior to culmination of the many developments of the 1970’s in the decision of the Court of Justice in case 804/79 Commission v United Kingdom [1981] E.C.R. 1045. The Court there held that, from the end of the transitional period for the UK, Ireland and Denmark on 31st December 1978, “the power to adopt …measures relating to the conservation of the sea has belonged fully and definitively to the Community.” It continued:

The Order represents a specific measure adopted by Ireland as a Member State introducing a system of licensing for mackerel fishing in the context of Community quotas. The applicant is being prosecuted for breaches of two specific provisions of his license. As explained by Denham J, he has been charged with violating the conditions of the licence by not giving four hours notice to the sea fisheries office and by landing mackerel at a non–designated port.
Mr Lavelle’s affidavit, sworn on behalf of the Minister, fully explains the context and purpose of the Order and how it relates to the CFP. The purpose of the regulations is to establish a framework for the conservation and protection of resources. The Community established a regime based on an annual total allowable catch (TAC or quota) for the various species of fish allocated to each Member State. Such a TAC is allocated to Ireland for mackerel. Most of the Irish mackerel TAC is fished by the dedicated pelagic segment of the Irish fishing fleet, i.e. those with refrigerated salt-water facilities. Less than ten per cent, 7,000 tonnes in 2001, is assigned by the State to less well-equipped vessels in the “polyvalent segment,” which fish for all species and to which the applicant’s vessel belongs. This segment is further divided into vessels under and over 65 feet in length. The applicant’s vessel is more than 65 feet and is licensed to fish against a quota of 5,500 tonnes.
Because the fishing capacity greatly exceeds the available quota, close monitoring is essential if the stock is not to be irredeemably damaged or even fished out entirely. Ireland is responsible for the management, control and supervision of the Community system in Irish territorial waters and over Irish vessels in Community waters. Its obligations include inspecting fishing vessels and investigating all activities, including landing, selling, transporting and storing fish and recording landings and sales.
The effect of the Order was to continue in force the licensing regime in relation to mackerel fishing established in 1984, when the Community introduced a TAC for that species. Mr Lavelle describes the effect of the Order as follows:
Having explained the function of the Order, Mr Lavelle turned to the purpose of the particular licensing conditions whose alleged breach led to the applicant’s prosecution.
Condition 8, requires the applicant to give four hours notice of his intention to land or tranship mackerel at a port to a sea fisheries protection officer. This condition represents a consistent policy of having all mackerel landings inspected by sea fisheries protection officers. The shoaling characteristics of mackerel make it possible for large catches to be made in a short period of time and no meaningful system of control could be exercised over the mackerel fishery without a system of advance notice of landing/transhipment being required of licensees. Mr Lavelle makes the same point about condition 9 requiring that the applicant land mackerel at one of six named ports. He says that it would not be logistically possible to monitor all potential landing points along the coastline. In any event, these ports were identified in consultation with representatives of the mackerel fishery. It was largely self-selected as the great bulk of mackerel are, in fact, landed at for of the named ports.
He says that this policy of 100% inspection is designed to ensure full compliance by the fishing fleet with the relevant Community rules and to protect and conserve available and accessible living aquatic resources.
The result is that the mackerel licensing regime serves both Community and national interests. Ireland is obliged, in the first instance, to allocate the TAC among Irish fishing interests. The Community obligation leaves discretion to the Member State regarding the allocation of quotas and systems of management and supervision. Clearly, the decision to adopt a system of 100% inspection was made by the Minister in the exercise of his discretion. It was not a requirement of Community law, although Mr Lavelle drew attention to a similar four hour notice provision where a Community vessel wishes to use a landing location in another Member State: see Article 7(1) of Council Regulation 2847/93 as amended by Article 1(7) of Council Regulation 2846/98. Quite obviously also, Community law did not require the Minister to limit landing of mackerel catches to six named ports. The combined purpose of the provisions was to ensure a high level of respect for the quota limits.
It follows from all of the foregoing that the Order forms part of the Community scheme for the management of fisheries and the supervision and enforcement of that system by the Member States, who may exercise discretion as to the means of supervision and control.
At first sight section 223A seems an eminently suitable vehicle for giving effect to the objectives of the Order. It is indisputably a measure dealing both with the “conservation of fish stocks” and it concerns “the rational exploitation of fisheries.” It relates to a specified class of sea-fishing and to fishing boats. The section was originally enacted in 1978, but, was amended in 1983, i.e. after the end of the transitional period and after the decision of the Court of Justice in Commission v United Kingdom. It seems natural and logical to ascribe to the section the function of giving effect to the CFP, insofar as the Member States are required to manage, control and supervise fisheries. It could not have meant that Ireland, via ministerial orders adopted under the section was authorised to enact autonomous conservation measures.
However, the learned trial judge felt constrained by the decision of this Court in Browne v Attorney General and others [2003] I.R. 205 to reach the contrary conclusion. The judgment of the majority of the Court delivered to-day arrives at the same result. The Minister has argued that Browne is distinguishable.
The Order at issue in Browne was the Sea Fisheries (Drift Net) Order 1998. That order expressly recited that it was being adopted “for the purpose of giving effect to Council Regulation (EC) No. 123/98 of 8th June 1998.” That Council Regulation contained express, detailed and mandatory rules prohibiting the use and keeping on board fishing vessels of drift nets. What the Order of 1998 did, in that case, was to incorporate by reference the relevant provisions of the Council Regulation. It is clear from what I have said that the Order at issue in this case does not implement or give effect to any such express Community requirement. Nor does it declare that it does so.
Keane C.J. delivered the decision of the majority in Browne. In the decisive part of his reasoning (page 220) he pointed out, as was clearly the case, that the Order of 1998 was intended to give effect to the principles and policies of the Council Regulation.
The Chief Justice proceeded to state:

The Chief Justice appears to treat the term, “the high seas” as including Community waters. At a later point the Chief Justice seems to consider that section 224B is, indeed, capable of justifying measures extending into Community waters and necessarily beyond national territorial waters.
In the crucial later passage of his judgment, the Chief Justice laid some emphasis on the proposition that “[w]hat no minister can do, in availing of the powers conferred by that section, is to provide for the creation of an indictable offence: that power was expressly reserved to the Oireachtas by” [section 3(3) of the European Communities Act, 1972.] The Chief Justice did not, however, arrive at the conclusion that the Order of 1998 offended against this prohibition. In that case, as in this the offence is created by section 223A(2) as inserted by section 9 of the Fisheries (Amendment) Act, 1978. The indictable offence is created by section 2 of the same Act. However, the Chief Justice proceeded as follows:
On a first reading, that passage seems heavily influenced by the proposition that an indictable of fence had been created. However, at the conclusion of his judgment, the Chief Justice made it clear that he was not deciding that issue. Therefore, it seems to me that what was crucial to this reasoning was that there had been available to the Minister a provision, section 224B, which, in combination with section 3 of the Act of 1972, expressly allowed for the adoption of measures such as the Order of 1998. On the principle, expression unius, he concluded that section 223A could not be used, given the existence of an expressly applicable and more suitable alternative.
It seems to me that, so interpreted, Browne is readily distinguishable. The Order of 1998 was explicitly adopted to give effect to the mandatory drift net prohibitions in the Council Regulation. Not only did it expressly declare that as its purpose, but it did so in a manner which corresponded precisely with the terms of the Community instrument. That is clearly not so in the present case. As I have pointed out, there is no Community instrument requiring the State to adopt the rules contained in the Order, and certainly not those contained in conditions 8 or 9 of the license. I would go further. Section 224B provides:

“Without prejudice to the generality of section 3(1) of the Act of 1972, the Minister may by regulations make provision to give effect within the exclusive fishery limits of the State to any provision either of the treaties or of any act adopted by an institution of the European Communities which authorises any or all the Member States of the European Communities to restrict, or otherwise regulate in a manner specified in the provision, fishing in waters, or in part of waters, under its or their sovereignty or jurisdiction.” (Emphasis added)

The underlined provision seems to mean that this section could only be used to give effect to Community acts which provided for the “manner” of the regulation. The Order did not give effect to any such provision.
By contrast with the case of the Order of 1998, in adopting the Order at issue in this case, the Minister decided on the manner of regulation. He was not required to do so by Community law.
In my view, therefore, the Order was not ultra vires the power of the Minister under section 223A and I would allow the appeal. Since this is a minority judgment, it is unnecessary to consider the cross-appeal.

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