A Supreme Court judge has warned that legislation governing a plastic bag levy was drafted in an overly complex way, saying legal provisions should be clear enough for people and their advisers to understand how to regulate their conduct.
Justice John MacMenamin made the observations in a judgment delivered on 4 June 2019 in Dunnes Stores’ appeal against the Revenue Commissioners, the Minister for the Environment, Heritage and Local Government, Ireland and the Attorney General. He said he agreed with the judgment and order proposed in the appeal, but added comments of his own.
The source does not set out the court’s proposed order or the appeal’s substantive outcome. MacMenamin said the provisions relied on could potentially expose the appellants to considerable financial liability, “perhaps running into millions of Euro”. He considered the legislative intent discernible as explained in Justice McKechnie’s judgment, but said the case raised a question for possible consideration in another case: whether a provision could be so unclear or confusingly cross-referenced that it lacked the defining features of law.
He referred to constitutional protections for personal rights and property, and described the law as protection against arbitrary conduct by the State or another body. He expressly said he was not suggesting there had been arbitrary abuse of power in this case. He added that legal protections should apply to large companies as well as ordinary citizens.
MacMenamin said the levy aimed to reduce use of packaging that poses an environmental hazard. The provisions concerned a ministerial power to impose a levy on bags made, or mainly made, of plastic, subject to exceptions by description, dimensions or purpose. He said the categories of bags covered and exempted, and the methods for estimating, assessing and collecting the levy, could have been defined more simply in a statutory instrument.
His comments also questioned whether both sides had engaged adequately: he asked whether Dunnes Stores had been as forthcoming with information as it might have been, and whether the Revenue Commissioners would have taken the same position with a small rural shopkeeper. He said it was unnecessary to resolve whether either side’s conduct had been entirely reasonable, and called for fair dealing and engagement between companies and State authorities.
He concluded that deterring non-biodegradable bags could serve a real public good, but that public policy and benign purposes should not stand in the way of legislative clarity.