Question on whether something is constitutional

Conor9320

If say a decision is made by An Bord Pleanála to allow the government to begin a fracking programme. And a third party is so concerned that they are contesting the decision by An Bord Pleanála and have instituted judicial review proceedings in order to safeguard the environment by protecting the area around this iconic landmark.
Can the government then pass legislation to confirm the decision of An Bord Pleanála and effectively take the issue out of the hands of the High Court? Is it constitutional?

All responses are welcome! One further request though, if it is unconstitutional I'd appreciate it if somebody could tell me the article it violates!

Thanks,
Conor

coylemj

Conor9320 wrote: »

Can the government then pass legislation to confirm the decision of An Bord Pleanála and effectively take the issue out of the hands of the High Court? Is it constitutional?

No they can't legislate to take something 'out of the hands of' the High Court for the simple reason that the HC can adjudicate on the constitutionality of the subsequent legislation.

The HC is 'invested with full original jurisdiction in and power to determine all matters and questions whether of law or fact' i.e it has unlimited jurisdiction. The only way you can effectively trump the HC is to write something into the constitution by way of a referendum.

the world wonders

Conor9320 wrote: »

Can the government then pass legislation to confirm the decision of An Bord Pleanála and effectively take the issue out of the hands of the High Court? Is it constitutional?

Yes it's constitutional for the Oireachtas (not the government) to enact legislation, even legislation that affects ongoing court cases -- the prohibition on retroactive laws only applies to criminal cases. The legislation itself could still be unconstitutional however, depending on what exactly it does.

Conor9320

the world wonders wrote: »

Yes it's constitutional for the Oireachtas (not the government) to enact legislation, even legislation that affects ongoing court cases -- the prohibition on retroactive laws only applies to criminal cases. The legislation itself could still be unconstitutional however, depending on what exactly it does.

thanks for your reply, could one argue that taking it out of the hands of the high court prevents people from being given an adequate opportunity to present their case? Because that would go against their constitutional right to fair procedure?

the world wonders

Conor9320 wrote: »

thanks for your reply, could one argue that taking it out of the hands of the high court prevents people from being given an adequate opportunity to present their case? Because that would go against their constitutional right to fair procedure?

Let me clarify with regards to the other comment by coylemj. This is the kind of law that would not be allowed:

• "The decision by an Bord Pleanala with regard to the fracking project at location X cannot be appealed to the High Court"

This is unconstitutional as it interferes with the High Court's constitutional role of judicial review, as explained above. However a law along these lines would be fine:

• "The fracking project at location X can proceed regardless of what any other planning or environmental legislation says".

The Oireachtas is allowed override its own legislation so this is fine. The project can still be appealed to the High Court, but only on constitutional grounds, not under the terms of the planning acts.

conorh91

Conor9320 wrote: »

thanks for your reply, could one argue that taking it out of the hands of the high court prevents people from being given an adequate opportunity to present their case? Because that would go against their constitutional right to fair procedure?

The constitutional right to fair procedures is not an inalienable right to litigate.It only applies to circumstances where an individual has an antecedent stateable claim.

If the Oireachtas were to enact legislation relevant to a live case before that case were disposed of, which would have the effect of negating all of the Plaintiff's claims, then the matter is moot, since there is no live dispute.

The Oireachtas may strike down as unconstitutional any legislation which impugns the individual's rights, for example, the equality guarantee, which protects the individual from arbitrary and capricious discrimination which flies in the face of natural justice and, separately, the doctrine of proportionality.

An extreme example of this would be if the Oireachtas were to enact legislation that arbitrarily prevents anyone named Conor, including you and I, from appealing decisions of An Bord Pleanala.

Such examples are extreme, because there are not many of them. In any case, the constitutional guarantee of equality is a surprisingly weak protection against statutory discrimination.

Conor9320

[QUOTE="The fracking project at location X can proceed regardless of what any other planning or environmental legislation says".[/list]The Oireachtas is allowed override its own legislation so this is fine. The project can still be appealed to the High Court, but only on constitutional grounds, not under the terms of the planning acts.[/QUOTE]

So essentially they'd have to make it so that they would no longer necessarily need planning permission from An Bord Pleanála?

Conor9320

"The fracking project at location X can proceed regardless of what any other planning or environmental legislation says".The Oireachtas is allowed override its own legislation so this is fine. The project can still be appealed to the High Court, but only on constitutional grounds, not under the terms of the planning acts.

So essentially they'd have to make it so that they would no longer necessarily need planning permission from An Bord Pleanála?

Peregrinus

Conor9320 wrote: »

So essentially they'd have to make it so that they would no longer necessarily need planning permission from An Bord Pleanála?

Well, they could do that in general. There is no constitutional requirement to have An Bord Pleanála in the first place. You could have a planning regime in which there was no right of appeal from the decision at first instance by the local government. Or a regime in which the right of appeal was to the Minister (which in fact is what we used to have). Both would be constitutional, in principle.

What is more problematic is legislation designed to take a specific case, that iis already before the courts, away from the courts. That seems to me potentially objectionable on the grounds that it violates the separation of powers.