An Blascaod Mór Teoranta and Others v Commissioners of Public Works and othersgeraf

• Jurisdiction: Ireland
• Judge: Mr. Justice Murphy,Mr Justice Kelly
• Judgment Date: 18 December 1996
• Neutral Citation: 1993 WJSC-HC 91
• Court: High Court
• Docket Number: [1991 No. 6620P],No. 6620p/1991
• Date: 18 December 1996

BLASCAOD MOR TEORANTA v. COMMISSIONER OF PUBLIC WORK

BETWEEN

AN BLASCAOD M ÓR TEORANTA, PETER CALLERY, JAMES CALLERY, KAY BROOKS AND MATTHIAS JAUCH

PLAINTIFFS

AND

THE COMMISSIONERS OF PUBLIC WORKS IN IRELAND, THE MINISTER FOR THE GAELTACHT, IRELAND AND THE ATTORNEY GENERAL

DEFENDANTS

AND BY ORDER

THE MINISTER FOR THE ARTS, CULTURE AND THE GAELTACHT,

SUBSTITUTED DEFENDANT

FOR THE FIRST AND SECOND

DEFENDANTS

[1996] IEHC 45

No. 6620p/1991

HIGH COURT

Synopsis:

Judicial Review

Delegation - vires of An Blascaod Mor National Historic Park Act, 1989 (Forms) Regulations, 1990 - whether Minister entitled to make Regulations without express power under Act - whether Regulations within terms of Act - whether complusory acquisition notices under Regulations valid - Held: Regulations valid - (High Court: Kelly J. - 18/12/1996)

|An Blascaod Mor Teo. & Ors. v. Commissioners for Public Works & Ors.|

Citations:

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 S4(3)

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 (FORMS) REGS 1990 SI 340/1990

CONSTITUTION ART 15.2

CITYVIEW PRESS LTD V CHOMHAIRLE OILIUNA & ORS 1980 IR 381

MIN FOR TRANSPORT & POWER V TRANS WORLD AIRLINES INC UNREP SUPREME 6.3.74

NESTOR V MURPHY 1979 IR 326

LUKE V INLAND REVENUE COMMISSIONERS 1963 AC 557

AG V GREAT EASTERN RAILWAY CO 1885 AC 473

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 SCHED PARA 5(3)(a)

LAND CLAUSES CONSOLIDATION ACT 1845 S69

LAND CLAUSES CONSOLIDATION ACT 1845 S70

LAND CLAUSES CONSOLIDATION ACT 1845 S71

LAND CLAUSES CONSOLIDATION ACT 1845 S72

LAND CLAUSES CONSOLIDATION ACT 1845 S73

LAND CLAUSES CONSOLIDATION ACT 1845 S74

LAND CLAUSES CONSOLIDATION ACT 1845 S75

LAND CLAUSES CONSOLIDATION ACT 1845 S76

LAND CLAUSES CONSOLIDATION ACT 1845 S77

LAND CLAUSES CONSOLIDATION ACT 1845 S78

LAND CLAUSES CONSOLIDATION ACT 1845 S79

LAND CLAUSES CONSOLIDATION ACT 1845 S80

LAND CLAUSES CONSOLIDATION ACT 1845 S81

LAND CLAUSES CONSOLIDATION ACT 1845 S82

LAND CLAUSES CONSOLIDATION ACT 1845 S83

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 SCHED PARA 3(3)

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 SCHED PARA 1(2)

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 SCHED PARA 2(2)

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 SCHED PARA 3(4)

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 SCHED PARA 7

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 SCHED PARA 1(1)

BLASCAOD MOR NATIONAL HISTORIC PARK ACT 1989 SCHED PARA 4(1)

MONAGHAN UDC V ALPHABET PROMOTIONS LTD 1980 ILRM 64

1 Judgment of Mr Justice Kelly delivered the 18th day of December 1996

Introduction

2 The Blaskets are an island group lying off the coast of Dingle Peninsula in Co Kerry. There are seven islands in the group, the largest of which is the Great Blasket or An Blascaod Mór, which is the subject matter of these proceedings.

3 The islands were inhabited since very early times but over the years their residents left them. The final evacuation of inhabitants from the islands took place on the 17th November, 1953.

4 Subsequent to that date, the Plaintiffs, through a series of transactions with which I need not deal in this judgment, became entitled to large quantities of land on the Great Blasket Island. They are the largest owners of land on the island.

5 In 1989 the Oireachtas passed into law an Act known as "An Blascaod Mór National Historic Park Act, 1989". That Act, inter alia, provides for the compulsory acquisition of the land which is owned by the Applicants. The Act is confined in its operation to the Great Blasket and does not extend to any of the other islands.

6 In these proceedings, the Plaintiffs make a series of complaints concerning this Act and seek, inter alia, a declaration that the Act in its entirety is invalid, having regard to the provisions of the Constitution. They also seek a declaration that regulations made and notices which were served with a view to putting the compulsory purchase powers into operation, are invalid and have no force or effect.

7 This action came on for hearing on the 19th November, 1996. During the course of the Plaintiffs” opening, Counsel on behalf of the Defendants suggested that, rather than go through a hearing which was estimated to take of the order of eight days (a rather conservative estimate), there should be tried a series of preliminary issues. The basis for this suggestion was that, in the event of these preliminary issues as to vires concerning the regulations and the notices which sought to give effect to the compulsory purchase being decided in favour of the Applicants, the Court ought not, and indeed would not, go on to consider the constitutionality of the Act. This suggestion met with the approval of Counsel for the Plaintiffs and indeed my own approval since if these issues are decided in favour of the Plaintiffs they will obtain relief against the compulsory acquisition and considerable savings both in time and in costs will be effected. True it is that the Act will still remain without its constitutional validity being determined by the Court, but that would have been the case in any event if these issues of vires were decided in the Plaintiffs” favour at the conclusion of a full hearing. As a matter of judicial self-restraint, I would not have been prepared or entitled to declare any part of the Act unconstitutional if such was unnecessary. This would be the case if the Plaintiffs were given effective relief in respect of their argument concerning the validity of the regulations and the notices issued to them.

8 Accordingly, by agreement of the parties, the following issues fall to be determined at this stage. They are:

9 1. Did the Minister have power under the Act to make the regulations found in Statutory Instrument No. 340 of 1990?

10 2. If the answer to 1 is in the affirmative, do the said regulations come within the terms of the above Act (including the Schedule)?

11 3. If the answer to 1 or 2 above is in the affirmative, are the notices the subject of these proceedings valid?

12 I will deal with each question in turn.

Question No 1.

13 Did the Minister have power under the Act to make the regulations found in Statutory Instrument No 340 of 1990?

14 The backdrop against which this question must be considered is that which is set forth at Article 15.2 of the Constitution. That Article reads as follows:

15 2 "1. The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State.

16 2. Provision may however be made by law for the creation or recognition of subordinate legislatures and for the powers and functions of these legislatures."

17 In the present case it is said, on behalf of the Plaintiffs, that the 1989 Act did not confer any power upon the Minister to make regulations of the type purportedly made in the present case.

18 There can be no doubt but that secondary or delegated legislation is permissible under the provisions of the Constitution which I have just cited. That such is the case can be confirmed by a passage from O'Higgins C. J. in Cityview Press Limited v An Comhairle Oiliuna and others 1980 IR 381 at 398 where he said

"The giving of powers to a designated Minister or subordinate body to make regulations or orders under a particular statute has been a feature of legislation for many years. The practice has obvious attractions in view of the complex, intricate and ever-changing situations which confront both the Legislature and the Executive in a modern State. Sometimes, as in this instance, the legislature, conscious of the danger of giving too much power in the regulation or order making process, provides that any regulation or order which is made should be subject to annulment by either House of Parliament. This retains a measure of control, if not in Parliament as such, at least in the two Houses. Therefore, it is a safeguard. Nevertheless, the ultimate responsibility rests with the Courts to ensure that constitutional safeguards remain, and that the exclusive authority of the National Parliament in the field of law-making is not eroded by a delegation of power which is neither contemplated nor permitted by the Constitution. In discharging that responsibility, the Courts will have regard to where and by what authority the law in question purports to have been made. In the view of this Court, the test is whether that which is challenged as an unauthorised delegation of parliamentary power is more than a mere giving effect to principles and policies which are contained in the statute itself. If it be, then it is not authorised; for such would constitute a purported exercise of legislative power by an authority which is not permitted to do so under the Constitution. On the other hand, if it be within the prescribed limits - if the law is laid down in the statute and details only are filled in or completed by the designated Minister or subordinate body - there is no unauthorised delegation of legislative power".

19 This is judicial recognition, if such were required, of the entitlement of the Oireachtas to confer powers or entitlements on a designated Minister or body to make regulations which will give legal effect to principles and policies which are contained in an enactment of the Oireachtas. That the Oireachtas exercises this entitlement as a matter of regularity can be ascertained by a cursory glance through any volume of the Acts as promulgated. Sometimes the power is conferred with a proviso that any regulation or order which is made should be subject to annulment by either House of Parliament. On other occasions, it requires such regulations to be laid before each House of the Oireachtas and to be confirmed by a resolution of each such House. Such provisions are so common that it is not necessary for me to cite examples. Unfortunately, in the present case, the Act contains no...