John Conway v an Bord Pleanála, The Minister for Housing, Local Government and Heritage, Ireland, The Attorney General, and Silvermount Ltd

• Jurisdiction: Ireland
• Judge: Mr Justice Maurice Collins,Ms. Justice Donnelly,Mr. Justice O'Donnell,Mr. Justice Gerard Hogan,Ms Justice Elizabeth Dunne
• Judgment Date: 23 July 2024
• Neutral Citation: [2024] IESC 34
• Court: Supreme Court
• Docket Number: S:AP:IE:2023:00092

In the Matter of An Application Pursuant to SS. 50, 50A and 50B of the Planning & Development Act, 2000

Between:

John Conway

Appellant

and

An Bord Pleanála, The Minister for Housing, Local Government & Heritage, Ireland & The Attorney General

Respondents

and

Silvermount Limited

Notice Party

[2024] IESC 34

O'Donnell CJ

Dunne J

Hogan J

Collins J

Donnelly J

S:AP:IE:2023:00092

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Unapproved

No redactions required

JUDGMENT ofMr Justice Maurice Collinsdelivered on 23 July 2024

1 I agree that this appeal should be dismissed. I share the concerns expressed by my colleagues as to the manner in which the application for judicial review was advanced here but I agree that, for the reasons set out by Hogan J in his judgment, the Court should nonetheless proceed to determine the issues raised by the appeal.

2 I agree with Hogan J's analysis of the Article 28A issue and with his conclusion that Section 28(1C) of the Planning and Development Act 2000 (which in its current form derives from the Planning and Development (Amendment) Act 2018) is not invalid by reference to the provisions of Article 28A and I have nothing to add to his analysis.

3 All members of the Court agree that the only other ground of challenge to section 28(1C) – based on the contention that the conferral by the Oireachtas on the Minister for the Environment (“ the Minister”) of a power to issue guidelines containing specific planning policy requirements, with which planning authorities and An Bord Pleanála must comply in the performance of their functions, constitutes an impermissible delegation of legislative power in breach of Article 15.2 of the Constitution – must also be rejected. However, there are certain points of difference between the analyses of my colleagues on this issue and in the circumstances it appears appropriate to briefly set out my position.

4 In my view, the ultimate issue that arises in every Article 15.2 challenge is whether the Oireachtas has abdicated its Article 15.2.1 law-making function. In addressing that fundamental issue, the presence or absence of “ principles and policies” in the parent legislation will be a relevant factor. So too the presence or absence of an ongoing supervisory role for the Oireachtas and the nature and scope of that role. But these are factors in a broader assessment of whether the Oireachtas has, in any given instance, impermissibly abdicated its function under Article 15.2.1, rather than free-standing or additional tests. Other factors will also be relevant to that assessment, including most obviously the breadth, subject-matter and significance of the rule-making power conferred and whether it involves an area of regulation requiring particular expertise that the Oireachtas may not itself possess. A rule-making power may permissibly involve some element of policy choice though significant policy decisions are, pursuant to Article 15.2, reserved to the Oireachtas.

5 I agree with the Chief Justice that there is no separate test of “ democratic accountability” in this context, whether arising from Article 15.2 or Article 5 of the Constitution. As I understand the Article 15.2 jurisprudence, the presence or absence of a formal supervisory mechanism involving the Oireachtas is not determinative. I expressed that view, and explained the basis for it, in my judgment in Delaney v Personal Injuries Assessment Board[2024] IESC 10 (at para 173). Some such mechanism is of course a feature of most legislation that confers rule-making power on subordinate bodies. Such is the case here: section 28(5) of the 2000 Act requires that guidelines made by the Minister be formally laid before each House of the Oireachtas. In addition to that formal statutory mechanism, the Minister is of course answerable to the Dáil in relation to the exercise of his section 28 functions. Further, the Oireachtas retains its competence to legislate further in this area should it consider it necessary to do so. As a matter of principle, however – as Delaney illustrates – it does not follow from Article 15.2 that a formal supervisory mechanism – less still any particular form of supervisory mechanism — is an a priori condition for permissible delegation in every case.

6 As to Article 5, as I indicated in Delaney (at para 198) I do not consider that it entitles a court to review legislation enacted by the Oireachtas on the basis that, in the court's view, such legislation is inconsistent with the democratic character of the State. While Article 5 is an important statement of general principle as to the nature of the State constituted by the 1937 Constitution, the State's democratic character is defined and delineated by the specific provisions that follow, including – but not limited to – Article 15.2.Article 15.2 contains important prescriptions as to the role of the Oireachtas and its entitlement to confer rule-making powers on other bodies. Where the Oireachtas legislates to confer rule-making authority on a subordinate body, then, provided that the legislation is within the permissible bounds of Article 15.2, the grant of such authority is democratically mandated and such legislation is not subject to separate review by reference to Article 5. Democratic accountability is, in this context, satisfied by ensuring that the power of the delegate is properly delimited by the democratically elected legislature so that the delegate is not impermissibly left at large. I agree with the Chief Justice's analysis in that respect.

7 All members of the Court agree that publication is an essential requirement of a valid law, including (as here) rules having normative status made pursuant to legislative authority. All agree that the requirement for publication is satisfied in this case, having regard to the provisions of section 28(5)–(7) of the 2000 Act. There are, however, differing views as to where in the Constitution that publication requirement is properly located.

8 This issue was not the subject of any real argument in this appeal. But as it is addressed in the judgments of my colleagues, I shall express my view also.

9 Promulgation/publication has long been understood as a fundamental aspect of the rule of law and the principle of legality. In The Morality of Law (Rev ed, 1969), Lon Fuller identified eight requirements of the rule of law, the second being that laws must be widely promulgated and publicly accessible.1 Similarly, in chapter 3 of The Rule of Law (2010), Tom Bingham identified accessibility of law – including but not limited to the principle that law should be publicly available – as the first essential ingredient of the rule of law.

10 The European Court of Human Rights has consistently emphasised that accessibility is an essential requirement of a valid law, the absence of which means that any interference with a Convention right will not be “ prescribed by law” or “ in accordance with law”. The approach of the Strasbourg Court is illustrated by Nolan v Russia (Application no. 2512/04) (2009) EHRR 262 which was referred to by this Court in Minister for Justice v Adach[2010] IESC 33, [2010] 3 IR 402. One of the complaints made in Nolan was of a breach of Article 5ECHR arising from the applicant's detention in Moscow Airport. While there were guidelines in place which might have authorised such detention, those guidelines had not been published

or made accessible to the public. In these circumstances, the ECtHR found a breach of Article 5, stressing that:

“[W]here deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. In laying down that any deprivation of liberty must be effected ‘in accordance with a procedure prescribed by law’, Article 5 § 1 does not merely refer back to domestic law; like the expressions ‘in accordance with the law’ and ‘prescribed by law’ in the second paragraphs of Articles 8 to 11, it also relates to the ‘quality of the law’, requiring it to be compatible with the rule of law, a concept inherent in all the Articles of the Convention. ‘Quality of law’ in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness” (para 98).

As is evident from this passage, and the jurisprudence of the ECtHR more generally, the requirement that law be accessible is not confined to Article 5 cases.

11 Article 25.4 of the Constitution provides for the promulgation as law of Bills signed by the President by the publication of a notice in Iris Oifigiúil. In Minister for Justice v Adach[2010] IESC 33, [2010] 3 IR 403, the Court (per Hardiman J) rejected the contention that the publication of a newly enacted Bill was necessary in order for the Bill to become law. The factual context in Adach was that 10 weeks had elapsed between the commencement of the Criminal Justice (Miscellaneous Provisions) Act 2009, which made various amendments to the European Arrest Warrant Act 2003, and the publication of the Act on the Oireachtas website. One such amendment made any appeal from the High Court in an EAW matter subject to prior certification by that court. During the period between the commencement of the 2009 Act and its publication, Mr Adach filed an appeal to the Supreme Court, without first obtaining a certificate from the High Court. The Minister then moved to strike out the appeal, based on the absence of a certificate. In response Mr Adach argued that the requirement for a certificate could not apply prior to the publication of the 2009 Act. Hardiman J rejected that argument on the basis that the question of whether a Bill passed by the Oireachtas has become law “ is one to be answered exclusively in terms of the Irish constitutional arrangements, which are set out in Article...