Government's plan to cap judicial review fees 'an attack on lawyers'
Seán Guerin SC said it is 'absolutely the message' that the average person would lose under the new plans. File Picture: Conor McCabe Photography.
There is "no real evidence" that judicial reviews are a significant cause of delay to infrastructure, despite government plans to overhaul them, the chair of the Bar Council has said.
Seán Guerin SC told the the plans to cap fees on judicial reviews are "an attack on the people who use the legal system", which is "troubling".
In recent months, the Government has unveiled plans to speed up the delivery of infrastructure. One key element of the plan is the introduction of new restrictions on the use of judicial reviews.
The plan also proposes the use of tests, with courts likely to be asked to consider whether a judicial review would be successful. Plans are also underway to place judicial reviews on a statutory footing, which would give the Government more control over the circumstances in which they can be used.
This would mean judicial reviews could only be taken on the final planning decision of a major infrastructure project rather than against multiple stages. These changes would be made as part of a new Civil Reform Bill, but it is not expected to be passed into law until mid-2027.
Ahead of this, a new scale of fees will be introduced for environmental judicial reviews. This will cap costs to the State and other parties.
Speaking to the ahead of a Bar Council conference on the issue of infrastructure, Mr Guerin said that the focus on judicial reviews had been used to "attack" the legal profession, but the real losers would be those who seek to challenge points of law in the courts.
"There has to be a real concern that, because there is no real evidence that judicial review is a significant delay in the delivery of infrastructure, what's actually happening is that an attack on lawyers is being used to deprive ordinary citizens of the opportunity to challenge significant developments, whether infrastructural or otherwise, and that is to deny them of their constitutional right," he said.
Under the proposals, the limit would stand at just under €41,000 for a standard case up to the end of a first instance hearing in the High Court. There would be a limit at the same stage in proceedings of about €53,350 for complex cases and €65,800 for very complex cases.
Mr Guerin said that it is "absolutely the message" that the average person would lose under the new plans.
"You hear people saying that we need to re-emphasise the common interest and that the balance needs to be readjusted. The courts don't strike the balance. That's a matter for the planning process. The courts decide on lawfulness," he said.
"The real concern is that important decisions affecting people's rights can be made in the planning process, but it's an essential right that there's a guarantee that there's a mechanism to challenge those processes.
Mr Guerin said the Government's own accelerating infrastructure taskforce had made dozens of recommendations, adding that just a few had mentioned judicial reviews.
"The right to access the courts, which includes the right to recover your costs if you are successful in challenging the legality of a decision by a public body, is absolutely essential and should not be jeopardised," he said.
Public expenditure mnister Jack Chambers last week told ministers that pre-planning processes are taking as long as four years to complete, with numerous approvals, consents, and licences required.
Cabinet heard that regulations for transport infrastructure, including new roads, require up to 30 licences, consents, and approvals, while there are 21 such processes for water projects and 20 for electricity infrastructure.
Mr Chambers said these processes can take as long as four years for wastewater projects, three years for electricity grid upgrades, and one year for road projects.
- Paul Hosford is the Acting Political Editor of the
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