The Supreme Court dismissed an appeal by the Attorney General and the Minister for the Marine and Natural Resources over the 1999 Mackerel (Licensing) Order, leaving in place a High Court declaration that the order exceeded the Minister’s powers. Justice Fennelly dissented and would have allowed the appeal.
The judgment supplied is Fennelly J’s minority judgment, delivered on 31 May 2005. He adopted the majority judgment’s account of the facts and legal issues, but disagreed with its conclusion that the appeal should be dismissed. The source does not reproduce the majority’s reasons in full.
The case arose from a prosecution of Thomas Kennedy over alleged breaches of two conditions attached to his mackerel licence: giving four hours’ notice before landing or transhipping a catch, and landing mackerel at a designated port. Fennelly J described the order as part of the common fisheries policy framework, while holding that the particular controls were choices made by the Minister under discretion left to Ireland. He noted that EU rules did not require the four-hour notice condition or limit landings to six named ports.
The Minister’s affidavit said the controls were intended to support inspection of catches and compliance with quota limits. Ireland had a mackerel quota allocated under the EU system, and the affidavit described the applicant’s vessel as belonging to the polyvalent fleet segment and licensed against a quota of 5,500 tonnes.
Fennelly J concluded that the order concerned conservation of fish stocks and rational exploitation of fisheries, bringing it within section 223A of the Fisheries Acts. He considered section 223B unavailable because the order’s terms were not specified in a Community act, and distinguished the earlier Supreme Court decision in Browne v Attorney General, which concerned an order implementing express and detailed EU drift-net prohibitions.
The majority nevertheless dismissed the appeal. Fennelly J’s proposed outcome was a dissent, not the Court’s order. Because he was in the minority, he said it was unnecessary to consider the cross-appeal.