Devlin v Minister for Arts

JurisdictionIreland
JudgeMR JUSTICE FRANCIS D MURPHY
Judgment Date01 January 1999
Neutral Citation[1998] IESC 43
CourtSupreme Court
Docket NumberRecord No 389/97,[S.C. No. 389 of 1997]
Date01 January 1999
DEVLIN v. MIN ARTS

Between:

MICHAEL DEVLIN
APPLICANT/APPELLANT

AND

THE MINISTER FOR ARTS, CULTURE AND THE GAELTACHT, IRELAND AND THE ATTORNEY GENERAL
RESPONDENTS

[1998] IESC 43

7O'FLAHERTY J

MURPHY J

BARRON J

Record No 389/97

THE SUPREME COURT

Synopsis

Administrative Law

Judicial review; wildlife licences; falconry; judicial review sought of the refusal of the Minister to renew the applicant's falconry and possession licences and the refual to grant CITES certificates; applicant had failed to co-operate with the Minister regarding DNA testing of birds of prey held by him; whether the Minister adopted a fixed and inflexible policy; whether the decision was unreasonable or irrational; whether there was a failure to consider the circumstances of the applicant; whether there were valid reasons for the refusal of the CITES certificates; whether the statement by the National Park and Wildlife Service that the applicant could appeal against the decision, even though no statutory appeal system existed, suggested a procedural impropriety; whether Minister should have considered a previous conviction of the accused in the United Kingdom for offences relating to birds; Wildlife Act, 1976; Wildlife Act 1976 (Birds of Prey) Regulations 1984; EEC Regulation Number 3626/82 Held: Appeal dismissed Devlin v. Minister for Arts, Culture and the Gaeltacht - Supreme Court: O'Flaherty J., Murphy J., Barron J. - 12/11/1998 — [1999] 1 IR 47 - [1999] 1 ILRM 462

The role of the courts in judicial review proceedings is to ensure that statutory powers are exercised in accordance with the requirements of constitutional and natural justice but the courts do not have an appellate role, in the absence of express statutory provision, by which they can review the actual decision taken by the body exercising such statutory powers. The Supreme Court so held in refusing the appeal and saying that the Minister had all relevant facts before him, which he considered, and further he had not fettered his discretion by identifying conditions which might be applied with advantage to licences granted pursuant to the 1976 Act.

Citations:

WILDLIFE ACT 1976 (BIRDS OF PREY) REGS 1984 SI 8/1984

EEC REG 3626/82

WILDLIFE ACT 1976 S11(1)

LANDS (ALTERATION OF NAME OF DEPT & TITLE OF MINISTER) ORDER 1977 SI 29/1977

TOURISM FISHERIES & FORESTRY (ALTERATION OF NAME OF DEPT & TITLE OF MINISTER) ORDER 1987 SI 82/1987

FORESTRY & WILDLIFE (TRANSFER OF DEPARTMENTAL ADMINISTRATION & MINISTERIAL FUNCTIONS) ORDER 1987 SI 96/1987

WILDLIFE (TRANSFER OF DEPARTMENTAL ADMINISTRATION & MINISTERIAL FUNCTIONS) ORDER 1987 SI 156/1987

HERITAGE (TRANSFER OF DEPARTMENTAL ADMINISTRATION & MINISTERIAL FUNCTIONS) ORDER 1994 SI 443/1994

WILDLIFE ACT 1976 S22

WILDLIFE ACT 1976 S41

WILDLIFE ACT 1976 S69(6)

MINISTERS & SECRETARIES (AMDT) (NO 2) ACT 1977

INTERNATIONAL FISHING VESSELS LTD V MIN FOR MARINE (NO 2) 1991 2 IR 93

MISHRA V MIN FOR JUSTICE 1996 1 IR 189

O'MAHONY V ARKLOW UDC 1965 IR 710

RIORDAN V AN TANAISTE 1998 1 ILRM 494

1

MR JUSTICE FRANCIS D MURPHY DELIVERED THE 12TH DAY OF NOVEMBER 1998 [NEM DISS]

2

This is an appeal by the Appellant/Applicant from the order and judgment of Mrs Justice McGuinness by which she refused an application for judicial review in respect of the refusal by the Minister for Arts Culture and the Gaeltacht (the Minister) to grant the renewal of certain licences under the Wildlife Act 1976(Birds of Prey) Regulations 1984 and EEC Regulation Number 3626/82. (The regulation implementing in the community the Convention on International Trade in Endangered Species of Wild Fauna and Flora.)

3

The Wildlife Act 1976was enacted with the wholly commendable purpose that being:-

"........For the conservation of wildlife (including game) and for that purpose to protect certain wild creatures and flora....."

4

Section 11 (1) of the 1976 Act identifies the role of the Minister in the following terms:-

"It shall be a function of the Minister to secure the conservation of wildlife."

5

The "Minister" was defined in the 1976 Act as being "The Minister for Lands". However, the Department of Lands became the Department of Fisheries pursuant to Statutory Instrument SI No. 29 of 1977. The name of that department was changed on the 14th July 1978 to the Department of Fisheries and Forestry. By a further change made on the 19th February 1986 it became the Department of Tourism, Fisheries and Forestry. By SI No. 82 of 1987 the name was refined to "The Department of the Marine". By SI No. 96 of 1987 the functions vested in the Minister for the Marine under the Wildlife Act 1976were transferred to the Minister for Energy. Subsequently by SI No. 156 of 1987 the powers of the Minister for Energy under the 1976 Act were transferred to the Minister for Finance. Later still those functions were transferred from the Minister for Finance to the Minister for Arts, Culture and the Gaeltacht by virtue of SI No. 443 of 1994. It is by that circuitous route that the Respondent became the Minister for the purposes of the 1976 Act and the Respondent in these proceedings.

6

Wildlife itself is defined in the 1976 Act in such a way as to include "wild birds" and falcons and hawks are "protected wild birds" within the meaning and for the purposes of s.22 thereof. The Minister is permitted by s.41 of the Act to make regulations (among other things):-

"(d) providing that a person shall not, save under and in accordance with a licence granted in that behalf by the Minister:-"

7

(i) engage in falconry,

8

(ii) have in his possession or under his control any eagle, hawk or falcon or the eggs or young of any eagle, hawk or falcon."

9

The power to grant licences for the purpose of that section is expressly conferred on the Minister.

10

The Wildlife Act 1976(Birds of Prey) Regulations 1984 (SI No 8 of 1984) (the 1984 Regulations) expressly provide (among other things) as follows:-

11

2 "4(1) A person shall not, save under and in accordance with the licence granted in that behalf by the Minister, either engage in falconry or have in his possession or under his control any eagle, hawk or falcon or the young or eggs of any eagle, hawk or falcon.

12

(2) Where:

13

(a) The Minister revokes a licence granted by him for the purposes of this regulation, or

14

(b) Such a licence expires,

15

the Minister may require the person to whom the licence was granted to dispose of, in such manner as the Minister shall specify in writing any eagle, hawk or falcon or the young or eggs of any eagle, hawk or falcon of which the person was in possession pursuant to such licence immediately before its revocation or expiration."

16

Finally, in relation to the 1976 Act, it may be noted that s.69(6) thereof expressly provides that:-

"Any person who contravenes a condition attached to a licence granted by the Minister under this Act shall be guilty of an offence."

17

From the affidavit sworn by the Appellant/Applicant it appears that he commenced the business of falconry in Ireland in the year 1991 having previously been involved in that business in the United Kingdom for upwards of eighteen years. It does appear in the affidavit of Mr Peter Brazel, a member of the National Parks and Wildlife Service (NPWS), that the Appellant/Applicant did apply for a licence entitling him to hold birds of prey and for a falconry licence entitling him to use birds of prey for hunting in each of the years 1992, 1993 and 1994. In April 1994 he was granted a falconry licence (BP/F 88/94) and a possession licence (BP/P 88/94). The schedule to those licences listed in particular four Peregrine falcons. Those licences expired in January 1995. Prior to renewal in that month controversy had arisen between the Applicant and the Minister's officers with regard to the reconciliation of the birds of prey listed in his application for the licence and those birds of prey which he had previously imported.

18

Eventually the Applicant/Appellant was on the 19th October 1995 granted a renewed Falconry Licence and a renewed Possession Licence each of which was subject to express terms which included the following:-

19

2 "(2) A report in writing giving particulars of the liberation, escape, death, sale or breeding of any of the birds to which this licence applies must be made to the Minister for Arts, Culture and the Gaeltacht within 14 days of the liberation, escape, death, sale or breeding of the birds or on a request being made in that behalf by the Minister.

20

(3) No birds of prey to which this licence applies may be disposed of by the licensee without the prior written approval of the Minister for Arts, Culture and the Gaeltacht.

21

(4) The Minister for Arts, Culture and the Gaeltacht may carry out, if he considers it appropriate, on any eagle, hawk or falcon or the young or eggs of any eagle, hawk or falcon which is referred to in the schedule to this licence, DNA analysis or other scientific testing by way of blood sampling or other suitable methods to be determined by the Minister."

22

Those licences were expressed to expire on the 31st January 1996. In a letter of the 26th October 1995 the Applicant through his solicitor contested all three of the quoted conditions. He complained that the provision requiring the Applicant to obtain permission from the Minister for the disposal of the birds was a breach "of our client's proprietary rights" and specifically that Mr Devlin was "not prepared to allow the Minister to carry out DNA tests on any of his birds at any time he considers appropriate". Mr Devlin did indicate he was prepared to have the birds tested by feather samples within a specified period. Mr Devlin made it clear that he was not prepared to co-operate fully with the Minister in the implementation of those regulations.

23

Mr Brazel swore that he had been informed by Mr...

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