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“Secondary Legislation” – circumventing the Irish  parliament
Andrew McGrath
With the European Communities Act 1972, the Oireachtas passed into law the measure that Treaties of the European Union, and obligations on member states accruing from those treaties, would have the same status and effect as  Acts of the Oireachtas. But the legal issues surrounding enforcement of EU measures, for instance those to do with fisheries policy, are not so  straightforward.    
For many years, EU regulations have been used by the Irish State as a  pretext for refusing to replace aged fishing vessels, and closing down the industry, even while the fleets of larger countries, such as Spain, are allowed unfettered access to Irish waters. Because Ireland has practically no navy to  speak of, effective policing of these fleets is impossible. The miniscule resources at the disposal of the Naval Service have been devoted mainly to pursuing Irish fishermen involved in relatively minor breaches of EU regulations concerning net  sizes and fish stocks, while the larger nations are mostly immune from repercussions, despite correspondingly greater breaches. In this context,  enforcement of regulations is almost meaningless, except as a means to crack down on fishermen, and make the prospect of continuing in the industry ever more unlikely.     
That such an interpretation is not an exaggeration can be seen in the means of enforcement: the Irish State has been using a phenomenon known as  secondary legislation to criminalise actions by Irish citizens that are in breach of EU provisions. Secondary legislation, also known by the term “Statutory Instrument”, is a means whereby a minister can pass a measure into law  without placing it before the Oireachtas for approval.    
The British Parliament enabled the use of the S.I. in a 1946 Act, and it  forms a standard part of the administrative structure of the UK. The picture is not so clear-cut in the case of Ireland: an Act passed by the Oireachtas in 1947 provides for the official publication of S.I.s, but it seems that there has never  been an attempt to establish the S.I. on a sound legal footing in Ireland. According to Article 15.2 of the Constitution, the only body capable of making law is the Oireachtas. In addition, in order to legalise the making of an S.I., the  Oireachtas would have to mandate the creation of a subordinate law-making body for that specific purpose. But the Oireachtas has never done this. So the  practice whereby Ministers have used S.I.s to give effect to EU law, without specific enactment of that law by the Oireachtas, is clearly unconstitutional.     
The Supreme Court cases Browne v. Attorney General (2003), and Kennedy v. Attorney General (2005), established that the Minister for the Marine and Natural Resources had acted ultra vires, that is, had exceeded his legal  authority, in subjecting the named individuals to criminal prosecution for breaching EU fishing regulations; regulations that had been given effect through S.I. The Government is currently trying to close this loophole with the European Communities Bill 2006.     
But the constitutional point stands: the State is acting illegally in its consistent policy of subjecting fishermen and farmers to criminal prosecution for  failing to adhere to the letter of EU regulations. The majority of these regulations have been enacted through S.I.. But if the State has no legal right to prosecute individuals for acting in breach of these regulations, the logical  conclusion is that these regulations cannot be enforced; in other words, they do not have the status of law under the Constitution. In order to become law, they would have to be enacted, through a specific act of legislation, by the  Oireachtas. Then, of course, a further issue would arise, that of the constitutional status of these EU provisions.     
With reference to such issues, the urgency with which Irish politicians have backed the revival of the “EU Constitution” becomes comprehensible. The  intention is at all costs to abolish Irish sovereignty, and a big step in this direction would be the abolition of the Irish Constitution.
© The Tara Foundation, 2007