It is reassuring to know that somebody somewhere is prepared to put aside their self-interest in the debate about reforming the rules around judicial reviews of environmental and planning decisions.
Enter the Bar Council, which represents the 3,000-odd practising barristers in Ireland. It has published the submission it made to a public consultation on the proposed changes. In the preparation of the document, it nobly set aside the narrow issue of what the changes might mean for the income of its members and focused instead on how they amount to a finger being placed on the scales of justice.
Unless you have been otherwise distracted – stuck in the queue to view an apartment or waiting for a ghost bus, perhaps – you will be aware that the Government wants to reduce the number of large developments and projects that are approved but either delayed or abandoned because of a legal flaw in the way the original application was dealt with by the planning system or a State agency.
This normally involves the project’s opponents seeking a judicial review of the process in the courts. The Government now wants to introduce a scale of fees to be applied in certain environmental judicial reviews.
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The Government is dissembling somewhat about its true intention, saying the measures are aimed at bringing greater predictability and proportionality to the State’s legal costs. But it is clear the proposals are “just one element of a wider series of reform actions to tackle barriers to infrastructure delivery”.
The Bar Council is not keen on the changes. It argues they would not deter “unmeritorious claims” and “make it much harder for citizens, communities and environmental organisations to bring legitimate cases forward”.
It further claims that the measures would in effect impose the cost “of fixing the errors of public bodies and State agencies” on “people and environmental organisations raising legitimate concerns about unlawful decisions”.
In adopting this somewhat maximalist position, the Bar Council seems to have failed to read the room.
Its first mistake is to introduce the notion of a legitimate case. You or I might think this means a case where the person bringing it has raised an important point, such as a building being too big or not meeting fire safety regulations.
In the context of judicial reviews, it seems to mean that you can plausibly argue that every single rule was not followed to the letter in the process of establishing that the building was in fact the right size and met fire regulations. The mistake may have been relatively trivial or have little bearing on the outcomes. It doesn’t matter. A “t” was not crossed or an “i” not dotted and the permission falls.
[ Tweaking rules for judicial reviews will not solve the problemOpens in new window ]
The second contestable suggestion made by the Bar Council is that the explosion in judicial reviews of environmental decisions in recent years is driven by some sort of public-spirited crusade to fix “the errors of public bodies and State agencies”. Presumably for the good of humanity.
It is manifestly not the case. What was historically a rarely-used legal procedure has been weaponised. It has become a way of having another bite at the cherry after all the other avenues deemed adequate by the State to contest a planning permission have been exhausted.
Judicial reviews are not about correcting the homework of public bodies. They are about overturning planning permissions. And even if they were about fixing errors, the issue of proportionality is ignored.
None of this stops the Bar Council from taking the high ground and claiming – with a straight face, we assume – that: “when a planning or environmental judicial review succeeds, it means that a decision has not been made in accordance with the law and the judicial review must therefore be considered to be in the public interest”.
The somewhat more significant public interest in having adequate housing, transport and energy supplies does not seem to figure in the Bar Council’s worldview.
You can’t help feeling the Bar Council really should have stayed in its lane on this one. It certainly should not have held itself out as a champion of the public interest when all it really seems to be doing is its actual job, advocating for its own members. The abuse of the judicial review process is a travesty and sabotages the wider public interest. The Bar Council is a trade union with a penchant for fancy dress. It is not to blame, and neither is it responsible for fixing the mess. But it does need to get out of the way and let the politicians whose job it is to get on with it.
In that context the “see you in court” vibes being given off by a rather loaded reference in the submission to the proposals being “unsound and without any legal or evidential justification” is very ill-judged.
