The Supreme Court dismissed an appeal by the Attorney General and the Minister for the Marine and Natural Resources, leaving in place a High Court declaration that the Mackerel (Licensing) Order 1999 was ultra vires the Minister’s powers under section 223A of the Fisheries (Consolidation) Act 1959, as amended.
In a judgment delivered by Denham J on 31 May 2005, the Court held that the order had been used to give effect to European Community fisheries rules, although it was made under section 223A. The Court said the statutory scheme did not intend that section to be used to implement Community law, particularly given the separate power in section 224B to make regulations for that purpose.
The case arose after fisherman Thomas Kennedy, who held a licence under the order, was charged with two alleged breaches of its conditions. One charge alleged he failed to give four hours’ notice before landing or transhipping mackerel; the other alleged he landed mackerel at a port not designated in his licence. He pleaded not guilty and was returned for trial to the Circuit Court in Tralee.
Kennedy then brought judicial review proceedings, seeking to restrain the prosecution and challenge the licensing provisions. The High Court allowed his application on the limited ground argued and declared the order ultra vires. The State appealed, arguing that the order reflected its residual power to manage and conserve sea resources, rather than implementing Community law.
The Supreme Court considered the order alongside the Community fisheries control regulations and Ireland’s obligations to monitor and enforce the Common Fisheries Policy. It concluded that the licensing regime was maintained and administered to serve the Community interest, and that the relevant licence conditions were primarily based on Community law. The Court said the order’s national management element did not displace that overarching purpose.
The Court upheld the High Court’s declaration on the stated ground: the respondents acted ultra vires by purporting to implement Council Regulation (EEC) No. 2847/93, as amended by Regulation (EC) No. 2846/98, through an order made under section 223A. It dismissed the State’s appeal. The judgment did not determine the criminal charges against Kennedy or decide the additional substantive challenges raised in his cross-appeal; the declaration was made on the limited basis considered by the High Court.