Proposed name changes for places such as Herzog Park in Rathgar, south Dublin, may be “legally unsafe” because of the “extraordinary” ongoing failure to fix a gap in legislation, according to legal advice received by Dublin City Council.
Barrister Stephen Dodd said the Department of Housing and Local Government was “clearly frustrating the will of the Oireachtas” and “undermining” local government in failing to revise legislation on the renaming of places.
The council sought a legal opinion on its ability to change placenames following the debacle over the attempted renaming of Herzog Park last December.
The park was named in 1995 in honour of Belfast-born Chaim Herzog, Israel’s president from 1983 to 1993, who spent his early childhood in Dublin when his father was chief rabbi of Ireland. His son, Yitzhak Herzog, is the current president of Israel.
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The removal of the Herzog name had been recommended by the council’s cross-party commemorations committee. However, hours after it was reported that the proposal was to be voted on by the full council, it became the focus of international attention and accusations of anti-Semitism.
Council chief executive Richard Shakespeare said he was contacted by the secretary general of the department querying whether the proposal was “legally sound”.
Councillors were told, in advance of the council meeting two days later, there were doubts over the legislative basis for the renaming because regulations for holding a public ballot on the proposal had not been made.
The proposed vote was withdrawn and the council subsequently sought advice on whether it was “legally permissible” to adopt a proposal to change a placename.
In his opinion Dodd said “regrettably and with some hesitation, I would consider that it may [be] legally unsafe” to adopt such a proposal “in the absence of regulations”.
The department had created a “lacuna” or gap in the law by repealing sections of the 1946 Local Government Act which set out regulations for a ballot, and not replacing them, he said.
The department had been aware of this anomaly for some time, as it had written to Cork County Council in 2021 advising a proposed placename change could not go ahead until new regulations for ballots had been made. It intended to resolve matters at the “earliest available opportunity”, it told the council.
This letter was sent “over four years ago and there are no regulations in place”, Dodd noted; “it seems extraordinary that the regulations have not been brought forward as promised,” he said.
“By repealing the previous statutory provisions and not having in place the requisite regulations to allow the replacement statutory provisions to operate, the department is clearly frustrating the will of the Oireachtas, undermining the local government function to be exercised by democratically elected local representatives, and is therefore wholly inappropriate.”
A case could be put forward, he said, that the absence of regulations does not mean there is no power to hold a ballot, and the council could chose to devise its own ballot procedures.
However, he said, “as the regulations are dealing with a matter of some sensitivity and importance concerning the conduct of a ballot and the exercise of democratic expression, it may be going too far to consider that the council could invent its own procedures for conducting the ballot in circumstances, where the legislation envisaged that this would be defined by regulations”.
A spokesman for the department said certain “legislative complexities” were involved which “may require primary legislation to resolve. This is a complex matter to which careful consideration will have to be given.”
