Delegated Legislation, European Union Directives and Constitutional Principles

Here is another snippet from my ongoing work on Hogan and Morgan’s Administrative Law in Ireland. The underlying issue here is the extent to which Ireland can implement EU Directives by delegated legislation. Ordinarily, only the Oireachtas (Parliament) can legislate or otherwise change the law: art 15 of the Constitution. Sometimes, however, the use of delegated legislation can be “necessitated”  by obligations of membership of international organisations: art 29. Nonetheless, where there is a policy choice to be made as to how those obligations should be implemented in Ireland, it should be made by the Oireachtas: Maher v Minister for Agriculture [2001] 2 I.R. 139.

The authors expressed some hope in the previous edition that the attempt on the Community side in the Treaty of Amsterdam to give greater teeth to the principle of subsidiarity, (i.e. that decisions should be left to Member States where possible) would bear fruit. In particular, in the Protocol on the Application of the Principles of Subsidiarity and Proportionality, annexed to the Treaty, Community measures are “to leave as much scope for national decisions as possible”. In principle, this more robust approach to subsidiarity suggests that the Oireachtas will almost certainly have some discretion in choosing how to implement Community measures.

Experience thus far has not been encouraging, however, as a pair of cases from the area of immigration and refugee law demonstrates. At issue in BA and RA v Minister for Justice and Equality[1] was the validity of the European Union (Subsidiary Protection) Regulations 2013,[2] the measures taken to implement Council Directive 2004/83/EC (the “Qualification Directive”). The Directive relates to subsidiary protection, which is a form of protection for non-refugees who would face a real risk of serious harm if returned to their home country. One of the points raised by the applicants was the validity of vesting the power to determine subsidiary protection applications in the Refugee Applications Commissioner; this power had, they submitted, previously been vested in the Minister. Mac Eochaidh J. held that the relevant principles and policies had been established by the Directive, such that the identification of the person who would receive subsidiary protection applications was “the only matter left to Ireland”, a “classic ‘filling in the gaps’ exercise”.[3] It made no difference that the power had been transferred from the Minister to the Commissioner rather than vested in the Commissioner at the first time of asking:

My view is that the State, being obliged to establish a facility for the assessment of applications for international protection, is entitled to rely on that obligation to vest the decision making role in whomsoever it pleases. Should it be decided to vest the function in some new body or agency, the transfer of such function to the new body is a lawful expression of the obligation to vest the function in an identifiable person or agency. That it is transferred does not reduce the nature of what the State is seeking to achieve by effecting the transfer – to ensure that there exists a person to whom application for international protection can be made.[4]

In the alternative, Mac Eochaidh J. had “no hesitation” in invoking s. 3(2) of the 1972 Act to validate the Regulations, because they were “capable of being regarded as a measure which was incidental, supplementary or consequential upon an obligation arising from the Qualification Directive and thereby properly included in a statutory instrument designed to ensure that Ireland’s obligations under European Union law are fully met”.[5]

A companion case soon followed: MB v Minister for Justice and Equality.[6] Here, the primary point of contention was whether the Commissioner could sub-delegate decisions on subsidiary protection. Mac Eochaidh J. was satisfied that the power of sub-delegation was necessitated by the need for decisions to be taken in a reasonable time – a requirement imposed by the European Court of Justice.[7] In the alternative, Mac Eochaidh J. again had “no hesitation in describing the power to delegate as a matter which is incidental, supplemental, or consequential upon a general power to decide such applications and thereby permitted to be created by statutory instrument in accordance with s 3(2) of the European Communities Act 1972”.[8]

The shortcomings of this approach are best revealed by a consideration of another point raised unsuccessfully in MB. The applicants submitted that it was inappropriate for the Commissioner to determine both an asylum application and subsequently – the asylum application having ex hypothesi been rejected – a subsidiary protection application. This was held not to constitute a breach of the rule against bias. While this conclusion seems quite sensible, it nonetheless underscores the extent of the policy choice made in the Regulations: there is a significant difference between assigning a power to a potentially biased decision-maker and one who would be coming to subsidiary protection applications afresh. Determining which of two different decision-makers should be assigned a particular jurisdiction is not merely a mechanical exercise – it requires (or at the very least could be said to require) the exercise of judgement as to which of the two would be better placed to discharge the responsibility effectively, a judgement based on consideration such as the structure of the bodies, their expertise and experience, and the relative availability of resources.

O’Connor and McCarthy v Director of Public Prosecutions[1] is another illustrative recent example. As a “raised bog”, Moanveanlagh Bog in County Kerry is a significant conservation and environmental site, which comes within the scope of the “Habitats Directive”.[2] The applicants were charged with offences relating to turf cutting in violation of the European Communities (Birds and Natural Habitats) Regulations, 2011. Section 35(1)(b) and s. 67(2) of the Regulations created the indictable offences in question. The applicant submitted that the Habitats Directive did not require Member States to create criminal offences in order to ensure compliance with the precepts of the Directive. In the High Court, O’Malley J. rejected this submission, holding that the continued deterioration of raised bogs in Ireland necessitated the introduction of criminal sanctions, certainly once non-coercive efforts to achieve compliance had failed to bear fruit:

In those circumstances, it seems to me that the introduction of criminal sanctions, almost 20 years after the Habitats Directive came into being, can fairly be said to have been necessary for the proper implementation of that directive. The fact that it does not, in terms, call for the creation of criminal offences is not, in my view, decisive, since directives by their nature leave the choice of implementation methods to the member states. No authority has been referred to which might suggest that criminal sanctions cannot be created unless the “parent” directive calls for them. Other measures to bring a stop to the deterioration of raised bogs have been tried. If they have not succeeded, as appears to be the case, then the choices of the State as to how the Habitats Directive is to be implemented may narrow down to the point where the criminal law has to be invoked. In my view that situation has been reached in relation to this issue. It is not open to the State to stand by and permit further damage to be done – that would be a breach of its legal obligations under the Habitats Directive.[3]

This analysis was endorsed on appeal.[4] Sheehan J. also noted the risk that enforcement proceedings would be taken against Ireland by the European Commission. Uncontested affidavit evidence disclosed “the risk of substantial fines” and also the “very real likelihood of reputational damage”.

O’Connor adds another twist to the tale of the implementation by Ireland of obligations flowing from membership of the European Union. Neither the text nor overriding purpose of the Habitats Directive could be said to have necessitated the introduction of a new criminal offence. Rather, the necessity to create a criminal offence arose from changes in the overall context – continued environmental degradation in raised bogs generally; failure of non-coercive measures; and the threat of enforcement measures. This is a novel proposition, under which the legality of a regulation can change according to extraneous circumstances. More generally, it seems pellucidly clear that the introduction of a criminal offence here involved a policy choice. By way of example, the regulations could equally have created a civil enforcement mechanism, allowing interested parties to bring actions for damages against illegal turf cutters. In addition, the applicant turf cutters in this case asserted historic turbary rights to cut turf on the Moanveanlagh Bog; to permit a decision to eliminate rights to be taken by regulation rather than by legislation – with the panoply of procedural safeguards that the law-making process of the Oireachtas provides – is at the very least incongruous.

[1] [2015] IEHC 558; [2015] 2 I.R. 71; [2017] IECA 101.

[2] Council Directive 92/43/EEC on the Conservation of Natural Habitats and of Wild Fauna and Flora.

[3] [2015] 2 I.R. 71 at 92-93.

[4] [2017] IECA 101.

[1] [2014] IEHC 618; [2014] 2 I.R. 377.

[2] SI No 426 of 2013.

[3] [2014] 2 I.R. 377 at 393.

[4] [2014] 2 I.R. 377 at 393-394.

[5] [2014] 2 I.R. 377 at 394.

[6] [2015] IEHC 146; [2015] 1 I.R. 20.

[7] N v Minister for Justice, Equality and Law Reform (Case C-604/12) [2014] 1 W.L.R. 3371.

[8] [2015] 1 I.R. 20, at 48.

This content has been updated on October 11, 2017 at 11:51.

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