The High Court has dismissed a judicial review challenge to the constitutionality of section 3(3) of the European Communities Act 1972, which allows ministers to provide for certain offences under regulations to be prosecuted on indictment.
Mr Justice Garrett Simons delivered judgment on 20 July 2023. The applicants, Gerry Gearty and Sean Beirne, are being prosecuted over alleged breaches of the European Communities (Birds and Natural Habitats) Regulations 2011. The alleged offences concern refusing entry to an authorised officer and obstructing or impeding an officer. The criminal proceedings had been stayed pending the judicial review.
The applicants initially challenged the 2011 regulations, but accepted that earlier decisions in separate proceedings had upheld their validity. They then challenged the parent legislation, arguing that the Oireachtas had impermissibly delegated legislative power to ministers. Their case included the contention that creating an indictable offence through secondary legislation was constitutionally impermissible unless required by Ireland’s EU obligations.
The judge held that section 3(3) could be read and applied consistently with Article 15.2.1° of the Constitution, which vests the sole and exclusive power to make laws in the Oireachtas. He said EU measures may leave Ireland with little meaningful choice about the need for effective, proportionate and dissuasive penalties. In such circumstances, he found, it is permissible for a minister to implement the measure through regulations, within the maximum penalties set by the Oireachtas and guided by the principles and policies of the relevant EU law.
The court also held that ministers’ view that an indictable offence is necessary is open to judicial review. A regulation may be set aside if it goes beyond the principles and policies of the EU measure it implements. The judge said hypothetical examples of an unlawful use of the statutory power would concern the validity of the particular regulations, rather than invalidate the parent legislation.
On procedure, the judge ruled that the pleaded ground allowed the applicants to make arguments under Articles 15.2.1° and 29.4.6° of the Constitution, but not to pursue an argument based on Article 38. He rejected the respondents’ objection to the applicants’ standing to challenge the parent legislation.
The court dismissed the challenge to section 3(3) and, as it was the only ground pursued at the hearing, dismissed the judicial review application. It did not determine the underlying criminal charges. The proceedings were listed for final orders on 27 July 2023.