The judge observed that “the meaning of a legal provision must, insofar as is practicable, be clear and discernible”.
By way of background, the High Court delivered judgment in Dunnes Stores in December 2011.
Dunnes Stores challenged the 2001 regulation imposing the plastic-bag levy after the Revenue Commissioners served the supermarket chain with tax assessments of €36.5 million in levies on plastic bags used in Dunnes Stores’ supermarkets.
The High Court held that the 2001 regulation included flimsy plastic bags (often used for fruit, vegetables and bread), as well as more robust plastic carrier bags.
Dunnes contended that:
- The levy only related to larger plastic bags given to customers at the ‘point of sale’, which were suitable for carrying groceries and other goods,
- The definition for plastic bag included in the 2001 regulation was so unclear as to render the regulation unenforceable, and
- The Revenue Commissioners failed to provide them with any direction as to how the money due should be calculated.
‘Overly complex’ legislation
While there is an exemption under the legislation for bags of a certain size or smaller (250mm wide by 345mm deep by 450mm long), the bags in Dunnes were larger than these dimensions.
Mr Justice Hedigan of the High Court ruled against Dunnes and found that “it would be most improbable that the legislature would exempt plastic bags that are supplied anywhere other than the point of sale.
Such a provision would miss large numbers of plastic bags and diminish greatly the impact of the act.”
The High Court further held that procedures taken by the Revenue Commissioners were not unfair.
Dunnes appealed the decision to the Supreme Court.
In dismissing the appeal, the court was very critical of the “overly complex” legislation.
Mr Justice MacMenamin gave particular time and consideration to the need for clearly drafted statutory provisions.
His observations deserve to be given appropriate weight by the legislative draftsman, particularly in circumstances where Mr Justice MacMenamin took particular time to bring issues surrounding the quality of drafting to the attention of the legislature.
The Supreme Court judge not only expressed views on the lack of clarity in the drafting of the legislation, but also suggested that provisions in future hearings by the courts might be deemed unconstitutional, and ultimately unenforceable, if they were not “clear and discernible”.
Mr Justice MacMenamin agreed with Mr Justice McKechnie’s finding that the legislative intent of the plastic-bag levy provisions was discernible – but he criticised the lengthy considerations required by the court to get to this point.
The judge also suggested that, if a statutory provision is very ambiguous in its wording or includes confusing cross-references to other statutory provisions, it may “not possess the defining indicia of the law itself”.
Mr Justice MacMenamin also looked at article 40.3.1 of the Constitution, which provides that “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”, and article 40.3.2, which provides that “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”.
He contended that the “constitutional and legal protections should apply as much to entities as they do to ordinary citizens”, and the guarantees provided in the Constitution are grounded on the rule of law and, as such, the rule of law must be “clear and discernible”.
The fundamental protections set out in the Constitution not only operate to protect persons subject to a particular law, but also their advisors when assessing whether their conduct is lawful.
While the complexity of the legislation had not resulted in an abuse in Dunnes, Mr Justice MacMenamin also opined that the Government and people responsible for drafting laws must keep in mind that ambiguous legislation can lend itself to abuse and that he provisions involved in this appeal are “surely capable of a much clearer definition”.
In assessing the conduct of both sides, he considered whether the same course of action would have been taken by the Revenue Commissioners if the matter involved a small rural shopkeeper running a supermarket, and held that “the conduct on one side has begotten a reaction from the other”, emphasising the need for good faith and fair dealing between citizens, corporate entities, and the State.
The use of the words “or otherwise” and “point of sale”, according to Mr Justice MacMenamin, were unnecessarily ambiguous when “it would not have been difficult to define the intended scope of the legislation”.
For instance, “the method of estimation, assessment and collection could have been directly defined” by the statutory instrument introduced by the minister.
While the legislation presents an “entirely laudable” purpose, being the reduction of the use of plastic bags, which pose a risk to the environment, Mr Justice MacMenamin concluded that “neither public policy, nor benign purposes should stand in the way of legislative clarity”.
It is clear from the judgment that Mr Justice MacMenamin was greatly concerned about the quality of legislative drafting and, as such, the comments should be read by the legislature with great care.
The judgment is of particular interest in relation to tax legislation, where recent trends suggest a leaning towards an ambiguous approach, arguably using widely undiscernible language, especially in relation to tax structures.
This judgment raises the issue of whether some aspects of our tax legislation are unnecessarily complicated and ambiguous in an aim to avoid abuse.