Kennedy -v- Attorney General & anor [2005] IESC 36 (31 May 2005)

Kennedy -v- Attorney General & anor [2005] IESC 36 (31 May 2005)

The Mackerel (Licensing) Order 1999 was ultra vires s.223A because it was made to implement Community law, which should have been done under s.224B; using s.223A circumvented statutory limitations on creating indictable offences reserved to the Oireachtas.

Citation
[2005] IESC 36
Parties
Applicant/respondent: Thomas Kennedy; Respondent/appellant: Attorney General; Respondent/appellant: Minister for the Marine and Natural Resources
Jurisdiction
Ireland
Judgment Date
31 May 2005
Procedural Posture
Judicial Review Appeal / Supreme Court Appeal From High Court
Outcome
Appeal dismissed; High Court order affirmed (majority).
Legal Topics
Ultra Vires, Ministerial Powers, Implementation of EU Law, Creation of Indictable Offences, Common Fisheries Policy
Administrative Law European Union Law Fisheries Law Constitutional Law Ultra Vires Ministerial Powers Implementation of EU Law Creation of Indictable Offences +1 more

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Parties

Thomas Kennedy

Applicant/respondent

Attorney General

Respondent/appellant

Minister for the Marine and Natural Resources

Respondent/appellant

Procedural Posture

Judicial Review Appeal / Supreme Court Appeal From High Court

Legal Issues

  1. 1 Whether the Mackerel (Licensing) Order 1999 was ultra vires s.223A of the Fisheries (Consolidation) Act, 1959
  2. 2 Whether the Minister could use s.223A to implement Community law
  3. 3 Whether the Order circumvented s.224B and s.3(3) of the European Communities Act, 1972

Ratio Decidendi

The Mackerel (Licensing) Order 1999 was ultra vires s.223A because it was made to implement Community law, which should have been done under s.224B; using s.223A circumvented statutory limitations on creating indictable offences reserved to the Oireachtas.

Court Disposition

Appeal dismissed; High Court order affirmed (majority).

Orders

  • Declaration that the Mackerel (Licensing) Order 1999 is ultra vires s.223A of the Fisheries (Consolidation) Act, 1959
  • Respondents acted ultra vires in purporting to implement Council Regulation (EC) No. 2847/93 as amended by Council Regulation (EC) No. 2846/98 via s.223A