Fish out of Water: Barlow v Minister for Agriculture, Food and the Marine [2016] IESC 62

From the Irish Supreme Court, a delightful case entitled Barlow v Minister for Agriculture, Food and the Marine [2016] IESC 62.

Fishing for mussels was the main issue. Article 10.1 of the Irish Constitution provides that all “natural resources” within Irish jurisdiction “belong to the State” and Article 10.3 allows for “Provision [to] be made by law for the management [and alienation] of this property”. Pursuant to an administrative arrangement, boats registered in Northern Ireland were permitted to fish for mussels in Irish waters.

These arrangements were laid out in correspondence between civil servants in the 1960s, of which O’Donnell J. said: “They were very much a product of their time; a time when it was assumed fish were caught on vessels crewed by men, on their own account, rather than as employees of limited companies, and when civil servants addressed each other only by their surname, and when the concepts of aquaculture, and large scale commercial exploitation of mussels, were far in the future” (at para. 13).

O’Donnell J. had to decide, first of all, whether mussels were one of the “natural resources” referred to in Article 10, a question in respect of which he found “the material daunting, not least, [because of] the extensive historical references not just as to public rights of fishery, but also the provisions of Magna Carta, and as will be seen, some aspects of Brehon Law” (at para. 29). But he was not impressed by the argument that Article 10 ought to be interpreted narrowly in order to give as wide a scope as possible to the preservation of private rights: “The structure of the Constitution, and its known sources would lead me to seek an interpretation which maintains both that fishing in the territorial waters is the exploitation of a natural resource and the continued existence of public rights of fishery rather than to consider that we are forced to choose one to the exclusion of the other” (at para. 61).

As a result, “on the plain meaning of Article 10 of the 1937 Constitution, the regulation of fishing for mussel seeds at least, when carried out in the territorial waters of the State, is the regulation and management of a natural resource, and therefore property belonging to the State which must be provided for by law, which must mean public legislation adopted by the representative of the People in the Oireachtas” (at para. 65).

The next question, then, was whether the administrative arrangements (a voisinage agreement) of the 1960s were “law” for the purposes of Article 10.3 (and, indeed, the Sea-Fisheries and Maritime Jurisdiction Act 2006, s. 10 of which makes it an offence for those on foreign boats to fish in Irish waters unless authorised by law).

They clearly were not: “It is not legislation enacted by the Oireachtas. It was not laid before either House of the Oireachtas. It was not publicised, was not available for debate and it was not even necessarily known to any of the representatives of the People at any point during the time when it is suggested it has regulated access to the State’s waters and fishing therein. Indeed, it is accepted that it lacks sufficient certainty and clarity such that if it were a private agreement, it would not constitute a legally enforceable one” (at para. 67).

The State advanced an ingenious argument based on the 2006 Act, s. 8 of which allows those on foreign boats to fish in Irish waters if there is an “arrangement” in place; this would provide the lawful authority for fishing by foreigners required by s. 10 of the 2006 Act and Article 10.3 of the Constitution (see para. 68). But as O’Donnell J. observed, “law” for the purposes of Article 10.3 “is not merely a formal procedural provision”:

In constitutional terms, it means that the Constitution requires that the regulation of natural resources stated to be the property of the State must be the subject of a decision by the representatives of the People who are accountable to them. Legislation is normally required to take place in public, (Article 15.8) which carries with it the possibility of public knowledge and debate. In effect, therefore the Constitution mandates that if State property, in particular natural resources, is to be sold, leased, managed or regulated, then that decision should be made in public by representatives who are accountable to the People who can accordingly make their views known. It follows in my view, that the Court should take a strict approach to the requirements of Article 10.3 which ensures compliance both with the text and the underlying rationale of the Article (at para. 69).

O’Donnell J. went on to point out that, properly construed in light of the constitutional context, s. 8 of the 2006 Act referred only to the entry of fishing vessels (which could be for many reasons, including seeking shelter or repairs), not fishermen, and could not be understood as authorising the exploitation of natural resources.

More fundamentally, however, the administrative arrangements pursuant to which the fishing took place lacked the necessary elements of “law” for the purposes of Article 10.3 of the Constitution:

There are certain minimum requirements of promulgation, publicity, clarity and certainty before any provision can be said to be a law under the Constitution…It is in my view an irreducible minimum of any legislation proffered as complying with a requirement of a constitutional provision such as Article 10.3…that [it] should be known to, or at least capable of being known to, the members of the Oireachtas making the law and to the persons affected by it. That includes persons in this case who seek to fish in Irish territorial waters pursuant to the arrangement, and interested members of the public who may wish to express views upon it. Where primary legislation in turn permits a delegate to make a more specific provision, it is apparent from the primary legislation who is to exercise the power, and the limits of the area of delegation so that at some level the range and scope of the provisions which may be made under the permitted power may be known in advance. Any such secondary legislation is in turn normally published and available. The obvious inadequacies of the voisinage arrangement in this regard, cannot be evaded simply by pointing to the terms of a section which refers to entry in accordance with a purpose provided for in “an arrangement”. Ultimately a criminal offence is committed if entry is effected (and, on the State argument, if fishing is carried out) other than in accordance with the arrangement. But all the difficulties already identified which mean that the arrangement is so vague and uncertain as to be incapable of enforcement if it were a private agreement, mean that it cannot be said that such fishing is “authorised by law” under section 10 or indeed regulated “by law” for the purposes of Article 10.3 (at para. 71).

Summing up, O’Donnell J. put the point well: “executive permission is, in constitutional terms, the antithesis of public legislation contemplated by Article 10.3 of the Constitution” (at para. 72).

This chimes quite well with the meaning given to “prescribed by law” provisions in the European Convention (see here) and the Canadian Charter of Rights and Freedoms (see here) and is consistent with the Irish courts’ defence of the principle by which legislative delegations of authority must contain an intelligible principle to guide the delegate in question (see here).

This content has been updated on November 3, 2016 at 13:24.