Legislation underpinning ‘plastic bag levy’ was sufficiently clear

McKechnie J (nem diss): Judicial review - plastic bag levy - Waste Management Act 1996 - Waste Management (Environmental Levy) (Plastic Bag) Regulations 2001 - Council Directive 91/156/EEC of the 18th March, 1991 - challenge to application of levy on 'flimsy' plastic bags - appeal from High Court - s. 72 of the 1996 Act (as inserted by section 9 of the Waste Management (Amendment) Act 2001) - bag to be wholly or in part made of plastic - suitable for use by customer at a point of sale - exceptions relating to size - environmental levy - obligation to charge customers - purpose of levy - reduce generation of waste - whether type of bag in issue should be regarded as within statutory definition of plastic bag - assessments of bags - disagreement between supermarket and Revenue Commissioners - application to quash assessments made by Revenue Commissioners - whether levy only applied to plastic bags suitable for use at point of sale - whether legislation contrary to provisions of the Constitution - whether regulations covered the type of bag in issue - place of availability in supermarket - intended use by customer - whether regulations failed to specify class of outlet - whether Revenue Commissioners acted in breach of fair procedures - bags placed at back of store - 'pinch and pull' - statutory interpretation - ambiguity of wording - whether Act was of a penal nature - failure to specify classes of supermarket - fair procedure - appeal pending before Appeal Commissioners - constitutionality - 'principles and policies' criteria - clauses in primary legislation giving government power to amend by secondary legislation - “Henry VIII clauses”.

"Leaving aside the words “or otherwise” for a moment, I do not believe that Article 3 of the Regulations, in its ordinary and natural meaning, applies only where plastic bags are supplied to customers at the point of sale. The relevant wording is “in respect of the supply to customers, at the point of sale to them of goods or products to be placed in the bags,or otherwise of plastic bags in or at any shop...” (emphasis added). The subject matter of the sale referred to are the goods or products to be placed in the bags, but not the bags of themselves. Therefore, the location of supply is not necessarily circumscribed by this phrase."

"As the Commissioners are a body with expert knowledge in dealing with taxation appeals, it seems to me that the most appropriate forum in which to pursue the fairness issue if it should remain alive, is before that body. Accordingly,I would not grant any relief under this heading of claim."

"With regard to the “principles and policies argument”, it is clear that the Oireachtas has authorised the Minister to select from amongst existing provisions dealing with the estimation, collection or recovery of taxes, those provisions which he considers appropriate to the estimation, collection and recovery of this tax. He may then by statutory instrument apply them to the purposes of the levy and if necessary, modify them in order to enable thatapplication. consequently, I see no difficulty in this regard."

MacMenamin J (concurring): Drafting of relevant legislation - potential liability on supermarket - definitions.

"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."

"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 andcollection 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."