Judicial reviews are a fundamental part of democracy — not a dig at the Government by greedy lawyers

A judicial review is any case taken against any public body that may have broken the law — it's the separation of powers working as intended, writes Cathal Malone

Public expenditure minister Jack Chambers said he was 'against anybody taking judicial reviews'. Picture: Leah Farrell/ RollingNews.ie

Anybody opening a newspaper or turning on the radio in the last couple of years will have no doubt come across the current Fianna Fáil/Fine Gael crusade against judicial reviews. 

To hear the story as told by the Coalition parties, judicial reviews are meddlesome court cases taken by cranks (and avaricious lawyers!) to hold up Government policy. But what is a judicial review? 

It is nothing more than a case taken against a public body when it is alleged they have broken the law in the manner in which they made a decision. In that sense, it is just the separation of powers working as intended, ensuring the public and the courts can ensure the Government is following the law.

Crucially, a judicial review is not about the merits of a decision — a court does not (and cannot) get into whether a particular policy is wise or sensible or is the best that could have been arrived at. A judge can only look at the process that was followed in coming to a decision.

If a decision-maker is biased, or takes into account irrelevant material, or fails to read the full file before coming to a decision, then a judicial review will often be successful. 

Similarly, if a decision is given without proper reasons, so it’s impossible to understand why it was arrived at, a court challenge is likely to follow. But surely these are the bare minimum standards we should expect from decision-makers paid for by our taxes, and making decisions in our name? 

Anybody who has had the misfortune to wind up in a protracted fight with a department of state will aver that, like all humans, civil servants are not perfect and infallible beings. 

Civil and public servants sometimes get things wrong, and there has to be somewhere the citizen or resident of this country can go when they do. We call that 'somewhere' a judicial review.

A judicial review can be taken in respect of almost any decision made by a public body: school expulsions, social welfare refusals; a refusal to grant citizenship; or the refusal (or grant) of planning permissions, to name but a few. It is the last category — decisions in respect of planning matters — which seem to have caused the current consternation.

As public expenditure minister Jack Chambers put it in the Dáil in April:

“I am against all judicial reviews whether it is environmentalists, landowners or anybody in the economy. When a decision is made by An Coimisiún Pleanála, we need to allow it to be built and respected… I am against anybody taking judicial reviews.” 

This might come as a surprise to Mr Chambers, who came out swinging in February when the Rotunda Hospital in Dublin had a planning application for an extension refused by An Coimisiún Pleanála. 

On that occasion, the minister said: “I think that the subjective element of planning decisions has gotten out of control in some instances,” adding it was up to the Rotunda whether they would take a judicial review against the refusal.

This really is the crux of the matter: the Government thinks An Coimisiún Pleanála is infallible when it’s approving developments they deem important, but it suddenly is “subjective” and “out of control” when it’s refusing their new pet project. 

That sort of logic should worry us. Not least, of course, because An Coimisiún Pleanála had to be created out of the ashes of An Bord Pleanála, a body consigned to history after serious governance failures came to light, including planning appeals being assigned to the members who lived closest to the proposed developments, in breach of policy. 

Paul Hyde, the former deputy chair of An Bord Pleanála, was convicted, fined, and received a suspended sentence for failing to properly declare his interests. Yet, when An Bord Pleanála was still in operation, we had Government ministers making the same argument: trust An Bord Pleanála, they’re the experts.

Cathal Malone: 'Concern about the climate is legitimate only insofar as it does not get in the way of whatever Fianna Fáil and Fine Gael politicians deem to be the necessary projects to win votes in particular local areas.'

One of the key current gripes of our ministers is that projects have been stalled by reliance upon section 15 of the Climate Action and Low Carbon Development Act 2015, which, among other things, requires State bodies to consider whether decisions will be consistent with the Government’s climate action plan. 

Rather than accepting this is a law passed by the Dáil and Seanad and signed by the president, and which therefore has to be followed, Mr Chambers was furious: “Our wider obligations to meet our climate targets can’t just be seen through the prism, whether we’re going to build a particular ring road or not. We have multiple objectives across many departments, and it’s not for NGOs or advocates to dictate to Government, whether we should progress a particular project.” 

This line of reasoning leads to some strange and concerning places. Mr Chambers announced that, partly as a result of court cases relying upon section 15, he is drafting emergency legislation to exempt certain projects from planning permission altogether, criticising what he called “excessive use of the courts” on the basis that “we have an elected Government”.

One doesn’t need to be an expert student of history to understand the resonance of this argument. “We are the Government, elected by the people, and we therefore represent the will of the people” is a chain of logic which usually ends badly for all concerned. 

For starters, the “will of the people” is also expressed in the laws that are passed by their elected representatives in the Oireachtas, and which we all have a right to expect that State bodies will follow. 

Instead, environmental NGOs such as An Taisce and Friends of the Earth are now in the “enemies” camp, along with “advocates” (whoever they might be!), environmental lawyers, residents’ associations, and anybody else who might get in the way of “progress” as seen from Merrion Street. 

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Concern about the climate is legitimate only insofar as it does not get in the way of whatever Fianna Fáil and Fine Gael politicians deem to be the necessary projects to win votes in particular local areas.

This would be a troubling development at any point in history, but looking across Europe (and, indeed, Ireland) this week, as wildfires rage and the fourth heatwave in a row is about to hit us, it seems short-sighted in the extreme.

• Cathal Malone is head of legal research at Thomas Coughlan & Co Solicitors, Cork