O’Donnell J.
McKechnie J.
MacMenamin J.
O’Malley J.
Finley Geoghegan J.

BETWEEN/

JUDGMENT delivered the 4th day of June 2019 by Mr. Justice John MacMenamin.

1. I agree with the judgment and order proposed in this appeal. However, I would like to add a few observations.

2. The legislation which the court has been asked to interpret in this appeal is drafted in an overly complex way. The effect of the provisions upon which reliance is placed may, potentially, expose the appellants to a considerable financial liability, perhaps running into millions of Euro. While I consider the legislative intent is discernible as explained in McKechnie J.’s comprehensive judgment, the process of detailed consideration which the court has had to give to the levy regime implicitly poses a question which may well have to be considered in another case. That question is as to whether some statutory provision, which in the future may fall for consideration by a court, is so unclear in its wording, or confusingly cross-referenced to other statutes, amendments, or statutory instruments, as not to possess the defining indicia of the law itself.

3. Under Article 40.3.1. of the Constitution, the State guarantees in its laws to respect and as far as practicable by its laws to defend and vindicate the personal rights of the citizen. Article 40.3.2 provides the State shall in particular by its laws protect as best it may from unjust attack and, in the case of injustice done, vindicate the life, person, good name and property rights of every citizen. The term ‘law’ is used many times in the Constitution in terms which resonate with the rule of law. The constitutional provisions express the essential principle that, the law as applied and interpreted by the courts, stands as a fundamental protection for the citizen against arbitrary conduct or activity by the State or any other body. I do not suggest in any way there is any arbitrary abuse of power in this case. Large corporate entities will not always attract public sympathy. But constitutional or legal protections should apply as much to such entities as they do to ordinary citizens.

4. The words of the Constitution import a guarantee the fundamental features of the rule of law. Among these features must be that the meaning of a legal provision must, insofar as is practicable, be clear and discernible, so as to provide, not only to each person subject to that law, but also their advisers, the ability to regulate conduct in order to know whether that conduct is lawful.

5. Opaque laws can lend themselves to abuse. Those in government departments who must draft laws may, perhaps, sometimes focus overmuch on a benign underlying intent of legislation which they seek to have enacted. Protection of the environment from litter and plastic is a case in point. But as judges, scholars and citizens have commented on previous occasions, there are areas of our law where the words of the statute too often are simply not as clear as they should be. I go no further than to say that the provisions invoked in this appeal were surely capable of a much clearer definition. I address this further later in the judgment. It is necessary first to say a word about context and conduct.

6. Whether the conduct of either side in this dispute has been entirely reasonable is a question which is unnecessary to resolve. On the one hand, one might ask oneself as to whether Dunnes Stores were as forthcoming in providing information and assisting the Revenue Commissioners as they might have been? Did they sufficiently engaged with the officials charged with administering the law? On the other hand, one might also rhetorically enquire whether, even having regard to scale, the Revenue Commissioners would have adopted the position which they have done, particularly in raising very substantial assessments, if, instead of the appellants, they had been dealing with a small rural shopkeeper running a supermarket in a small country town? One is left with a lingering sense that, the conduct on one side has begotten a reaction from the other. Could there have been earlier engagement between the parties? The fair application of law frequently requires a degree of reciprocity and engagement by citizens or corporate entities with the State. It also requires that State authorities should act fairly. Good faith and fair dealing is a necessary part of the social contract between citizens, corporate entities and the State and its organs.

7. The provisions in question have an entirely laudable social purpose: to reduce the use of a type of packaging which poses a hazard to the environment. What is in issue here is the vesting of a power in the Minister to impose a levy on bags made, or mainly made, of plastic, subject to such exceptions as to description, dimensions or purpose which could have been simply defined in a statutory instrument. The type of bags which are sought to be captured by the legislation are those used in the course of merchandising, packing, carrying out, purchasing or sale of goods or products to the public in shops, supermarkets, service stations or other outlets where such goods or products, or other products are on sale, or sold. The particular categories of exempted bags, defined by use, purpose and dimensions, could also have been identified in the same statutory instrument. The method of estimation, assessment and collection could also have been directly defined by that statutory instrument. It would not have been difficult to define the intended scope of the legislation without using potentially unnecessary or ambiguous words such as “or otherwise” or “point of sale”. The definitions are not only awkward but unnecessary.

8. I do not of course propose what is contained in the last paragraph as being some form of statutory definition. Such matters are best left to those skilled in the art of drafting. But I refer to the ingredients simply to advert to the virtue of a simpler drafting approach. The observations of McKechnie J. in his judgment, on this point require no repetition.

9. It is evident that the legislative purpose behind this legislation acknowledges that certain categories of plastic bags are non-biodegradable and pose a significant threat to the environment. There is a real public good in deterring their use by the imposition of a levy. No reasonable person could object to the legislative intent and purpose of what is at stake. But I would emphasise that neither public policy, nor benign purposes should stand in the way of legislative clarity. These are not mutually incompatible aims.