'Unfair' to blame legal system for planning delays caused by judicial reviews — chief justice

Chief Justice Donal O’Donnell: 'I think it’s a little bit unfair, it’s too easy to say "blame judicial review", when judicial review involves claims brought to seek to enforce law that exists.' File picture: Don Moloney

It is “too easy” to blame the courts system for “so-called dysfunction” in achieving progress on developments, the chief justice has said.

Mr Justice Donal O’Donnell said in a planning context “a lot of delay” takes place “earlier in the process” and it was “unfair” to blame judicial reviews alone.

“I do think it is too easy to blame the legal system for so-called dysfunction,” the chief justice told the IIEA’s Young Professionals Network (YPN).

He said he was “impressed” with Ezra Klein’s non-fiction book Abundance, and the idea “the post-Watergate world set up all these structures to protect us against corruption” and that has “unintentionally strangled or made it difficult to develop in different jurisdictions”.

“You can see traces of that in Ireland, that what is intended to be a reform, what is intended to be transparent, to be procedurally fair, can become an obstruction.” 

He said the courts were “extremely conscious of that” and were “fighting very hard to try and move things along”, but added legal professionals had not created problems “out of thin air”.

He said there had been an “immense amount” of new regulation, some of which is European, and which was “increasing all the time”.

“I think it’s a little bit unfair, it’s too easy to say ‘blame judicial review’, when judicial review involves claims brought to seek to enforce law that exists,” he said.

Mr Justice O'Donnell said they were open to ways to speed up processes and avoid delays, but in the planning context “a lot of the delay and obstruction is built in earlier in the process”.

“I think it’s a much more complex thing than saying ‘it’s the courts' or judicial review,” he said.

Irish politicians, including Taoiseach Micheál Martin, have criticised judicial reviews for contributing to delays in major housing and infrastructure projects.

Judicial reviews have been taken against major projects such as the Dublin drainage scheme, the MetroLink and the Dart North in recent years.

Justice minister Jim O’Callaghan's Civil Reform Bill, the general scheme of which was published in January, aims to “overhaul” the judicial review mechanism and implement “greater transparency and a more streamlined process” amid "housing shortages, energy deficits, inadequate water supplies and climate changes".

Mr Justice O’Donnell also warned of a “well-meaning gridlock” due to “overlapping” jurisdictions that deal with fundamental rights in Europe.

He said there needed to be “genuine two-way communication” between national and super-national courts.

“A challenge to a measure on grounds of interference with the rights of an individual can require consideration of national law, the national constitution, the European Convention on Human Rights, the treaties, and in particular, the Charter of Fundamental Rights of the European Union.

“When all of this is taken together, there is a real prospect of a well-meaning gridlock, and as it were, a legal Tower of Babel, and it really beholds everyone involved to attempt to avoid that outcome, because a key part of the challenge to the post-war model of liberal democracy is the complaint not just about the overreach by the courts, but also of inefficiency and delay.”