The Minister had created indictable offences carrying up to 3 years imprisonment or a fine of up to €500,000 for illegal turf cutting. This power was permitted by a 2007 amendment to the European Communities Act.
A constitutional challenge was brought to this legislation by the applicants, claiming it infringes on the Article 15.2.1 which states that no legislative authority has the power to make laws for the State other than the Oireachtas. The applicants claimed that creating an indictable offence amounts to making secondary legislation, which is a function exclusively for the Oireachtas.
The Supreme Court ruled the power by the Minister to create an indictable offence by Regulations made under Section 3 of the European Communities Act 1972 does not infringe on the principle of non-delegation of power by the Oireachtas. The Court stated the fundamental test to determine whether a power is legislative is whether in making the legislation that conferred subsidiary law-making powers on a Minister or other delegate, the Oireachtas abdicated its own constitutional power and duty to make laws for the State. A consideration relevant to this question are whether the act delegating the power contains sufficient principles and policies so that it can be said the delegate, by creating legislation, is only giving effect to the policies and principled contained in the original act.
The creation of offences by the Minister could be lawful if the transposing of legislation is necessitated by EU law, in this case, the Habitats Directive, and if there is sufficient guidance in the parent European law instrument and sufficient clear boundaries as to competency of the delegate.
In this case, the Supreme Court state that while the Minister is creating a criminal offence, the area for decision is very substantially narrowed, as the objective of the EU legislation is explicit: protecting bog habitats. The questions of whether peat bogs are such habitats and the level of protection required were already answered by EU legislation. Thus, the subject-matter, objective, guidance and boundaries for subsidiary law-making have already been decided. All that is left to member states is to choose the method of enforcement which achieves the objective.
In addition, the review by the Houses of the Oireachtas of regulations transposed by the Minister was held to be a safeguard on the power and suggested that there was no abdication by the Oireachtas of its law-making responsibilities.
In relation to certainty, there is a presumption that a person should not be penalized except under clear law and, according to previous legal authority, the power to create an indictable offence should be clear from the words of the statute as interpreted within the framework of what is involved. The Supreme Court stated that sufficient certainty arises, because the EU legislation is clear as to the necessity to have proportionate penalties to infringement and because the EU legislation encompasses the need to act proportionately.
To read the decision, please click here.