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1. This is an appeal brought by the defendants against an order made in the High Court by Lardner J on 12 March 1985 by way of interlocutory injunction restraining the defendants, pending the trial of the action, from acting on foot of or attempting to enforce, or enforcing, or taking any steps to enforce, a particular condition attached to three licences issued on 17 August 1984 to the plaintiff in respect of three fishing boats the property of the plaintiff, the licences being issued pursuant to the provisions of s. 222 (b ) of the Fisheries (Consolidation) Act 1959 (No.14) inserted by s. 2 of the Fisheries (Amendment) Act 1983 (No.27). The condition referred to in the order is a condition that the boat the subject matter of the licence shall not be used for sea fishing whether within the exclusive fishery limit of the State or otherwise, unless 75 per cent or more of the members of the crew are Irish citizens or nationals of another Member State of the European Economic Communities.

2. The plaintiff is a limited liability company, incorporated under the Companies Act 1963 and is the owner of three fishing vessels formerly registered in Spain, but since May of1981, registered in the State. The boats are used and intended to be used for deep water trawling and, particularly, for fishing of hake.

3. In December 1983 the first defendant, the Minister, issued licences in respect of the boats the property of the plaintiff, which contained a condition in respect of the citizenship and nationality of members of the crew identical to that referred to in the order of the High Court and contained in the licence issued in August 1984. The operation of that condition was, however, in the licences issued for the season 1983 to 1984, postponed until 17 August 1984. On the issue of the licence in 1984 this postponement was lifted and subsequently on 11 September 1984 one of the boats the property of the plaintiff, named Montemarin, was arrested and the master thereof charged with the offence of fishing otherwise than in accordance with the licence, on the basis that the entire crew of the fishing vessel were nationals of Spain. The vessel was released from detention upon the lodgment of a substantial sum in cash by way of security and the master was returned for trial and awaits trial in the Circuit Court in Cork.

4. The plaintiff in the affidavits supporting its application for an interlocutory injunction has given evidence of a substantial nature: (a) indicating that it is impossible for them to comply with the citizenship or nationality condition in the licence, as Irish fishermen are unwilling to take up employment and to persist in it on boats fishing for hake by reason of the length of the sea voyages involved and the hardship of the work concerned, and (b) of the fact that if the three boats the property of the plaintiff are prevented from fishing by the enforcement of this licence pending the hearing and final determination of the plaintiffs action for a declaration that the material provisions of the Fisheries (Amendment ) Act 1983 are inconsistent with the Constitution and with European Community law that the plaintiff company will be put of business and will thus suffer an irreparable loss.

5. The defendants in their affidavit contest both these facts and assert that if the plaintiff is permitted to continue fishing with a crew which does not comply with the condition pending the hearing of the action that it will be damaging to Irish fishery interests in general and to the employment of Irish fishermen.

6. The appellants, in short, contended that the effect of the injunction was to put into suspension the exercise by the Minister of a power expressly granted to him by the provisions of the Fisheries (Consolidation) Act 1983 to impose a condition of this type into a licence and suspending the power of the defendant the Attorney General, to prosecute a criminal offence created by the Fisheries (Amendment) Act 1983. Accordingly it was submitted having regard to the presumption of consistency with the Constitution which attached to those statutory provisions, the true test on the hearing of an application for an interlocutory injunction was not the otherwise applicable test as to whether the plaintiff had established a fair question to be tried and, secondly, as to where the balance of convenience lay. The contention was that the court should never grant an interlocutory injunction which in effect prohibited, even for a temporary period, the exercise of a statutory power contained in a post-Constitution statute or, in the alternative, that it should only do so in the most exceptional circumstances such as the imposition of a drastic penalty or the establishment by the plaintiff that a statutory provision is clearly unconstitutional. On applying this principle it was contended on behalf of the defendant that in this case the consequence to the plaintiff of permitting the continued operation of this condition in the licence could never be described as a drastic penalty and that submissions made on behalf of the defendants with regard to the interpretation of community law concerning the Fisheries (Amendment ) Act 1983 was sufficient at least to show that the plaintiff was not guaranteed success in its contention.

7. On behalf of the plaintiff it was contended:

8. It was further contended that it was by no means clear that in the event of its succeeding in the action the plaintiff had a good cause of action for loss suffered by it, including fines imposed and property forfeited as a result of any conviction on the fishery offence against any of the defendants. Indeed, counsel for the defendants expressly refused to concede that such a cause of action existed.

9. I am not satisfied that any such general principle as has been contended for, on behalf of the appellants, exists. Reliance was placed on the decision of this Court in The State (Llewellyn) v Ua Donnchadha [1973] IR 151. In that case the prosecutor was charged summarily with an offence against s. 49 of the Road Traffic Act 1961. Whilst his trial was pending before the District Court another person had instituted proceedings challenging the constitutional validity of the applicable portion of that section. He had failed in those proceedings in the High Court but the order of the High Court was appealed to the Supreme Court.

10. The prosecutor applied for and obtained a conditional order of prohibition in the High Court against the continuance of the trial of the charges pending the decision of the Supreme Court on that appeal. Upon cause being shown, that conditional order was discharged by the High Court and the prosecutor appealed to this Court. This Court upheld the decision of the High Court and confirmed the discharge of the conditional order.

11. It is clear from the judgments of both Walsh J and Henchy J which were the two judgments with which the other members of the court agreed, that the sole issue for this Court was whether the District Justice in indicating his intention to proceed with the trial of the charges was acting or threatening to act in excess of his jurisdiction. Neither judgment contains any statement of principle indicating that it would have been wrong for the District Justice to adjourn or postpone the hearing of the charge until the determination of the appeal in the constitutional action. In particular, in his judgment, Henchy J relied upon the fact that there was a decision of the High Court upholding the Constitutional validity of the subsection which was binding on the District Court. I do not, therefore, interpret this decision of this Court as in any way laying down a principle that the court should not interfere by way of interlocutory injunction pending the determination of a claim with regard to the constitutional validity of a statute if the consequence of that injunction is to postpone or suspend the bringing to trial of a criminal charge. It is, as has been so frequently stated, the duty of the courts to protect persons against the invasion of their constitutional rights or against unconstitutional action. It would seem wholly inconsistent with that duty if the court were to be without power in an appropriate case to restrain by injunction action against a person which found its authority in a statutory provision which might eventually be held to be invalid having regard to the Constitution. In particular, it seems to me that this power must exist in an appropriate case where the form of action is under a penal section and involves conviction of and the imposition of a penalty for the commission of a criminal offence.

12. I am, therefore, satisfied that the presumption of constitutional validity which applies to the Fisheries (Amendment) Act 1983 expressly authorizing the insertion of this condition in these licences is material in relation to the determination by the court as to whether the plaintiff has established a fair question to be tried at the hearing of his action. I am also satisfied that the consequence arising from the making of an interlocutory injunction of preventing the Executive from carrying out powers vested in them by a Statute enjoying that presumption and, in particular, the consequence of postponing the bringing to trial of a criminal offence created by such a statute, is a matter for consideration on the balance of convenience. I am not, however, satisfied that there is any special principle applicable to an application for an interlocutory injunction of this kind.

13. On the submissions which have been made on behalf of the plaintiff concerning the issues arising from a consideration of the community law concerning fisheries and the alleged inconsistency with that law of the impugned provisions of the Act of 1983, I am satisfied that, notwithstanding the presumption of constitutional validity which attaches to this Statute, the plaintiff has clearly established that there is a fair question to be tried.

14. Having regard to the doubt which must exist as to whether in the event of the plaintiff succeeding in condemning the impugned provisions of the Act of 1983 it could recover against any of the defendants or against any other person or body, damages for the losses which it would suffer by reason, firstly, of having been convicted and penalised under an unconstitutional Statute and, secondly, of having been effectively prevented from carrying on fishing with the existing crews for the period which would elapse before final determination of the action, I am also satisfied that the balance of convenience clearly lies with the plaintiff in regard to the question of the granting of an interlocutory injunction, notwithstanding that it puts, as has been urged, 'into suspension' the operation of this part of the Act or 1983.

15. In short, therefore, I would agree with the decision of Lardner J and with the reasons which led him to arrive at that decision. In the course of his ruling Lardner J stated that it was his intention that the form of the injunction should be as narrow and confined as possible.

16. The injunction granted by the High Court is stated to be against all three defendants, but whilst Ireland may be an appropriate defendant in regard to the claim in the action, it does not appear to be appropriate that any injunction should ever be given against Ireland and I, therefore, would alter the order of the High Court by making the injunction against the first and third-named defendants only.

17. Furthermore, if this injunction is confirmed then the plaintiff will, until the final determination of this action, probably on the affidavits before this Court, continue to fish with a crew the citizenship or nationality of which does not comply with the condition inserted in the licence. In the event of the plaintiff failing in the action and the validity of the relevant statutory provisions in the Act of 1983 being upheld, the plaintiff will in effect have been regularly and consistently committing a series of criminal offences.

18. The injunction in its present form would appear to me to prevent not only the continuing by the Attorney General of the charge which is awaiting hearing in the Circuit Criminal Court but would also prevent the enforcement by the defendant the Minister of the licence and, therefore, the ascertaining or collecting by him of evidence of the commission of any offences. It also of course, prevents the arrest or detention by him of any ship, arising from an alleged commission of an offence consisting of fishing otherwise than in accordance with the licence. It would vitiate the reality and consequence of the injunction if the Minister were to be permitted to arrest or detain any ship on suspicion or allegation of this particular offence. It would not, however, affect the present position of the plaintiff’s operations and capacity to continue fishing if the Minister were permitted through his officers and agents to ascertain whether fishing by a crew not complying with the condition is continuing on each or all of these three boats. I would, therefore, vary the order of the High Court in addition to the exclusion of its applicability to the defendant, Ireland, by providing in it a saver for the right of the first-named defendant by his servants, officer and agents without arresting any of the plaintiff's servants or agents or arresting or detaining any of the three ships the property of the plaintiff to which the licences refer, to ascertain by any lawful means, including the boarding of the said vessels, whether on any particular occasion the said vessels are fishing in apparent breach of the condition as to citizenship and nationaliy contained in the licence. Subject to these variations, I would confirm the order of the High Court.

19. I agree with the judgment of the Chief Justice and the order that he proposes

20. The argument for the Minister, as I understand it, is simple and limited. The section under which he acted enjoys the presumption of constitutionality; therefore the two considerations normally applicable to interlocutory relief by way of injunction (*references hereunder) do not apply, and he relies upon the decision of this Court in The State (Llewellyn)v Ua Donnchadha [1973] IR 151. I respectfully adopt the observations made by the Chief Justice on Llewellyn's case. The plaintiff's case however, in my view, goes outside an area of constitutional challenge; the first challenge is that the regulations made by the Minister under the amended section (s. 222 (b) (5) of the Fisheries (Consoldiation) Act 1959) are in conflict with the law of the European Economic Community as being discriminatory amongst the nationals of Member States and, further, as advanced in argument in the High Court and in this Court that, because of the expiry of the transition period since accession by Ireland to the Community, the Oireachtas has now power to legislate regarding the permanent rules as to fisheries, including rules for access to fishing grounds, and that the regulations in question are such rules; in sum, that the regulations are ultra vires the State, whilst constituting a covert form of invidious discrimination. As I understood the argument on behalf of the Minister, the existence of a fair question to be tried on the Community law issue was not in question; indeed I fail to see how it could be questioned. The constitutional presumption, in my view, is irrelevant to these considerations, since the Constitution itself envisages at least some freedom from constitutional scrutiny of ‘laws enacted, acts done or measures adopted by the Communities, or institutions thereof’ , as to having the force of law in the State (Article 29.4.3°). Such a shield from constitutional scrutiny can scarcely carry the presumption of constitutional validity attaching to the legislation of the Oireachtas.

21. In my view, accordingly, on the Community law point, having made out a fair case on the law and a strong case on the facts as to damage, bearing in mind that the plaintiffs' right to compensation in the event of eventual success is certainly not conceded and is far from clear, the plaintiffs are entitled to an injunction pending the trial of the action.