The Supreme Court recently clarified that an amendment to an Act did not require a new commencement order, even though the earlier Act contained a commencement provision. This issue of statutory construction had previously not arisen in any reported decision or been addressed by any of the major texts in this area of law.
The first named plaintiff obtained a foreshore licence and an aquaculture licence in October 1994, for the purposes of mussel and oyster cultivation, in respect of a portion of the foreshore of Lough Swilly, Co. Donegal. Both licences were for a period of ten years. When the licences expired, the first named plaintiff applied to renew them and was allowed to continue their operation pending renewal, pursuant to s. 19A (4) in the Fisheries (Amendment) Act 1997, as amended by s.101(c) of the Sea Fisheries and Maritime Jurisdiction Act 2006.
The defendants were fishermen who entered the plaintiffs' area of Lough Swilly from September 2006, while the renewal process was underway. The first named plaintiff sought and obtained an interlocutory injunction restraining the defendants from continuing to fish in the area and then sought a permanent injunction and damages.
The defendants appealed the decision on the basis that s. 19A (4) of the 1997 Act was not in force at the time of the alleged trespass. The 2006 Act did not contain a commencement provision, and thus came into force on the day it was signed by the President, in accordance with Article 25.4.1 of the Constitution. The defendants contended that whilst s.101 came into effect that day, and was effective to achieve the insertion of s.19A into the 1997 Act, a commencement order was required under the 1997 Act to commence the new s.19A. Therefore there was no statutory extension of the licences, and the defendants had not committed any trespass.
The Supreme Court dismissed the defendants' appeal. The Court held, inter alia, that the plaintiffs' licences remained in force following their expiration under the amended legislation, and that s.19A (4) of the 1997 Act had come into force under the amending 2006 Act, and did not require a new commencement order.
O’Donnell J. (with Hardiman J. and Clarke J. concurring) stated: "No commencement order under the parent Act was made because it was not necessary, because the section was already commenced and in full force by the coming into force of the amending Act…This approach is, in my view, consistent with Article 25.4.1. The Article in effect creates a presumption that unless the contrary appears, an Act comes into force on the date of signature and on the same day as it is signed by the President".
This decision serves as a useful reminder of the rules concerning when primary legislation comes into effect. It provides welcome clarity on an important point of statutory construction - an amendment to an Act does not require a form of double movement (i.e. insertion into the Act and then commencement of the section inserted). The amendment comes into effect on the coming into force of the amending Act.