The Supreme Court has dismissed an appeal challenging the constitutionality of a law that allows ministers to create indictable offences through regulations implementing European Union obligations. It affirmed the High Court order dismissing the appellants’ challenge.
Gerry Gearty and Sean Beirne traditionally exercised turbary rights at Cloneen bog in County Longford. They were charged with refusing, in June 2012, to allow authorised ministerial officers to enter their privately owned boglands. They were not charged with illegal turf cutting.
The appeal concerned the power added to the European Communities Act 1972 by the 2007 Act. It allows regulations implementing EU measures to provide for prosecution on indictment where the minister considers it necessary to give those measures full effect. The maximum penalties are three years’ imprisonment and a fine of €500,000. The appellants argued that creating indictable offences was a function reserved to the Oireachtas under Article 15.2.1° of the Constitution.
The judgment, delivered by Mr Justice Peter Charleton on 17 October 2024, said the appeal was confined to that challenge to the enabling law. The appellants accepted, in light of earlier decisions, that they could not directly challenge the validity of the 2011 European Communities (Birds and Habitats) Regulations. The Supreme Court noted that the appellants’ criminal proceedings appeared likely to be dealt with summarily.
The court held that the Oireachtas can delegate authority to create indictable offences without necessarily surrendering its constitutional law-making role. In this case, it said, EU obligations to protect habitats constrained the choices available to ministers. The court considered the objectives and boundaries set by the relevant European measures, the limited range of enforcement options, the statutory penalty limits and the procedure under which regulations may be reviewed and annulled by the Houses of the Oireachtas.
The court concluded that the delegation was constitutionally permissible in this case and that the appeal should be dismissed. It affirmed the High Court order. The judgment did not decide the appellants’ guilt on the underlying charge.