Administrative Law - Special Summons - Appeal against a byelaw - Extent of Powers of court in hearing appeal - Fisheries (Consolidation) Act 1959, sections 9, 11 and 67(1) - Fisheries (Amendment) Act 1962, section 3 - The Regulation and Management of Eel Fishing Bye- Law No 752, 1998 - Rules of the Superior Courts 1986, Order 93.
The High Court (Mr Justice McCracken); judgment delivered 13 December 2000
The power given to the minister under section 9 of the Fisheries (Consolidation) Act 1959, as amended, was to make such bye-laws as were in his opinion expedient for the more effectual government, management, protection and improvement of fisheries. From the evidence, the impugned bye-law (restricting the number of eel fishing licences) was expedient for the management and protection of eel fisheries. It was clear that the minister took into account a number of studies and research papers conducted by experts. It was unfortunate that the byelaw interfered with the plaintiffs' livelihood but regard had to be had for the greater good and for the preservation of fish for the future.
Mr Justice McCracken so held in dismissing both actions.
Maurice Gaffney SC and Andrew Kelly BL for the plaintiffs in the first action; Mark de Blacam SC and Sean McMorrow BL for the plaintiff in the second action; Senan Allen SC and Robert Barron BL for the defendant.
Mr Justice Mccracken said that the cases were being heard together as both plaintiffs sought the annulment of the Regulation and Management of Eel Fishing Bye-law 752, 1998 ("the bye-law"). The bye-law sought to restrict the number of eel fishing licences for a long line which might be issued in each fishery district in any year. The plaintiffs in each case were fishermen and had locus standi to bring the proceedings.
Section 9(1) of the Fisheries (Consolidation) Act 1959 ("the Act"), as amended by section 3 of the Fisheries (Amendment) Act 1962, provided for the general power of the minister to make such bye-laws as were in his opinion expedient for the more effectual government, management and improvement of fisheries of the State. Without prejudice to the generality of this power, the minister was given the power to make byelaws regarding, inter alia, the regulation of the fisheries in the State and the preservation of good order among the persons engaged therein (section 9(1)(a)), the imposition of prohibitions or restrictions of an emergency character (section 9(1)(gg)) and any other matter or thing relating to any manner to the government and protection of said fisheries (section 9(1)(h)). Section 11 of the Act provided for the coming into operation of the bye-law, its publication, and provisions relating to an appeal against such an instrument to the High Court. Order 93 of the Rules of the Superior Court set out that the procedure to be followed on such appeal was by way of Special Summons.
Mr Justice McCracken said that there appeared to have been some misunderstanding on the part of the plaintiffs as to the basis upon which it was purported to make the bye-law. There had been a bye-law made the previous year pursuant to section 9(1)(gg) of the Act on the basis that it imposed restrictions of an emergency character for a specified period not exceeding one year in duration. Considerable evidence in this case had been directed by the plaintiffs towards establishing that such emergency situation did not exist at the time of the bye-law which was now in issue. However, it had been confirmed in the course of the hearing on behalf of the defendant that the impugned bye-law was not made pursuant to this provision, but was purported to be made pursuant to the general power given to the Minister both in the introductory part of section 9(1) and in subparagraph (h). In particular, the Minister had relied on the fact that the list of specific matters set out in section 9(1) was expressly stated to be without prejudice to the generality of the general power.
Mr Justice McCracken said that the extent of powers of a court in hearing an appeal of this nature was considered in detail by Mr Justice Costello in Dunne v The Minister for Fisheries and Forestry (1984) IR 230, at page 240, where he said: "First, it seems to me that the Oireachtas must have intended that the Court's jurisdiction on an appeal should be wider than its powers when exercising its inherent jurisdiction at common law. Secondly, the right of appeal is not expressly limited to an appeal on a point of law which, for example, is the limitation imposed on an appeal under section 45 of the Social Welfare Act 1952. Thirdly, the Court's power to confirm or annul such an instrument to which Section 11 of the Act of 1959 applies can arise . . . in a number of different circumstances; in some of them the party aggrieved may have an opportunity to present a case to the Minister before the impugned instrument was made, and in some of them he may not have had that opportunity."
Mr Justice McCracken said that as the minister did not hold an inquiry before making the bye-law the plaintiffs did not have an opportunity to put forward their case. One of the grounds of their appeal was that, not only was an inquiry not held, but that they were not consulted. The plaintiffs sought to make the case that the failure to consult was unfair and failed to take into account their constitutional right to earn a livelihood. Mr Justice McCracken stated that this might have been a reasonable argument if there was no right of appeal to the court, but in the circumstances of this appeal it had no validity in itself. However, he said, the fact that there was no inquiry, and that no consultations were held, left the court at large in considering the validity of the bye-law. The plaintiffs were entitled to make any relevant submissions to the court which they could have made to the minister had they been consulted. He said that it was quite clear from the judgment in the Dunne case that the court was conducting its own hearing and was not in any way restricted to matters which may have been considered by the minister in deciding to make the bye-law.
The plaintiffs placed great emphasis on the provision of section 67(1) of the Act providing for the issuing of fishing licences in respect of scheduled licences by each board of conservators. The argument was made that such provision was mandatory and, in effect, that if an application was made for a licence, the board of conservators had no discretion to refuse it. Mr Justice McCracken said that in one sense that was certainly correct. However, it was only mandatory to issue the licences in accordance with the provisions of section 67, and subsection 67(14) provided that every ordinary fishing licence shall operate to authorise the use, during the period specified therein and in the fishery district specified therein, of a fishing engine of the kind specified therein, but subject to the provisions of the Act and any instrument made thereunder. Part of the provisions of the Act was the authority under section 9 for the minister to make bye-laws, and one of the instruments under the Act was the bye-law in question. Mr Justice McCracken stated that therefore the board's power or authority to issue licences was subject to the provisions of the bye-law, and was always intended to be subject to any bye-laws made by the Minister under section 9, otherwise the provisions of section 9 would be pointless.
The power given to the Minister under section 9 was to make such bye-laws as were in his opinion expedient for the more effectual government, management, protection and improvement of fisheries. From the evidence, Mr Justice McCracken had no doubt that the bye-law in issue was, in the view of the minister, expedient certainly for the management and protection of eel fisheries. It was clear from the affidavit evidence in both cases that the minister took into account a number of studies and research papers conducted and written by experts in the field, and the decision to make the bye-law was taken in the light of those views. He said that he was satisfied that the bye-laws were in accordance with those views and it could not be said that the minister acted unreasonably or capriciously in following those views. Mr Justice McCracken said that while he was entitled to determine the appeals on his own interpretation on the facts, he had no doubt that there was a good reason to make the byelaw. Mr Justice McCracken considered the argument that the effect of the bye-law was to interfere with the livelihood of the plaintiffs. However, he said that the clear function of the minister under section 9 was to manage, protect and improve the fisheries of the State in general and this he had sought to do. It was unfortunate for the plaintiffs if, in doing this, the minister interfered with their livelihood, but his regard had to be for the greater good and preservation of fisheries for the future. In Mr Justice McCracken's view, the bye-law clearly and in accordance with the expert advice given to the minister had this effect. If it were sought to challenge the constitutionality of the whole fisheries scheme, it was not the bye-law which should be challenged, but the provisions of section 9 which gave the minister the power to control the industry. As that was not a matter before Mr Justice McCracken, he made no comment on it.
Accordingly, Mr Justice McCracken dismissed both actions.
Solicitors: Anthony Murphy (Dublin) for the plaintiffs in the first action; Howley Carter & Co (Sligo) for the plaintiff in the second action; the Chief State Solicitor for the defendant.
Gillian Reid
Barrister