Supreme Court dismisses turf cutters’ challenge to habitats law

The Supreme Court has dismissed a challenge by two turf cutters relating to how EU habitats law was transposed into Irish law.
Gerry Gearty and Sean Beirne, both with addresses in Eddercloone, Carrick-on-Shannon, Co Leitrim, brought the challenge after they were prosecuted for allegedly preventing National Parks and Wildlife Service officers, and gardaí from getting access their lands at Cloneen bog in Co Longford.
Their prosecutions were paused pending determination of their separate High Court challenges.
The challenges centred on the European Communities Act 1972 which gave effect to the EU Habitats Directive under which the officers sought access to their land. The case was against the DPP, Minister for Arts Heritage and the Gaeltacht, the State and a District Court judge who opposed it.
The men claimed the Constitution did not allow for the creation of an indictable offence other than by way of primary legislation.
They claimed a minister cannot create an indictable offence under the 1972 Act (as amended in 2007) so as to change the original method of prosecution by way of summary trial in the District Court where there was a lesser penalty.
[ Trials of two turf-cutters collapses after State decides not to pursue prosecutionOpens in new window ]
The High Court rejected their claim and they were granted an appeal directly to the Supreme Court as Ireland is the subject of European infringement proceedings for allegedly failing to take action to halt peat cutting within certain areas of conservation.
On Thursday, a five-judge Supreme Court unanimously dismissed the appeal.
Giving the court’s judgment, Mr Justice Peter Charleton ruled the creation by ministerial regulation of indictable, as opposed to summary, offences validly expressed to implement measures under EU law is not an abdication by the Oireachtas of its sole and exclusive law-making authority under the Constitution.
He said it was within the competence of the legislature to delegate power to create indictable offences to the Executive.
In this case, the power in this case derives from EU law obligations.
The “prescriptive nature” of the Habitats Directive meant any command over policy left over to member states “has been reduced almost to vanishing point”, he said.
So in this case, the EU directive or regulation becomes the parent measure whereas in legislation passed by the Oirechtas the primary legislation – the Act – is the parent measure, he said.
The relevant case law clearly affords some weight to the safeguards providing for the review of regulations by the Houses of the Oireachtas, he said.
In this case, there was that review. “This is part of the holistic overview in the test as to whether there has been an abdication by the Oireachtas of its law-making responsibility under Article 12.2.1 of the Constitution”, he said.
He dismissed the appeal and affirmed the High Court order.