High Court of Ireland Decisions

1. The Blaskets are an island group lying off the coast of Dingle Peninsula in Co Kerry. There are seven islands in the group, the largest of which is the Great Blasket or An Blascaod Mór, which is the subject matter of these proceedings.

2. The islands were inhabited since very early times but over the years their residents left them. The final evacuation of inhabitants from the islands took place on the 17th November, 1953.

3. Subsequent to that date, the Plaintiffs, through a series of transactions with which I need not deal in this judgment, became entitled to large quantities of land on the Great Blasket Island. They are the largest owners of land on the island.

4. In 1989 the Oireachtas passed into law an Act known as "An Blascaod Mór National Historic Park Act, 1989". That Act, inter alia, provides for the compulsory acquisition of the land which is owned by the Applicants. The Act is confined in its operation to the Great Blasket and does not extend to any of the other islands.

5. In these proceedings, the Plaintiffs make a series of complaints concerning this Act and seek, inter alia, a declaration that the Act in its entirety is invalid, having regard to the provisions of the Constitution. They also seek a declaration that regulations made and notices which were served with a view to putting the compulsory purchase powers into operation, are invalid and have no force or effect.

6. This action came on for hearing on the 19th November, 1996. During the course of the Plaintiffs' opening, Counsel on behalf of the Defendants suggested that, rather than go through a hearing which was estimated to take of the order of eight days (a rather conservative estimate), there should be tried a series of preliminary issues. The basis for this suggestion was that, in the event of these preliminary issues as to vires concerning the regulations and the notices which sought to give effect to the compulsory purchase being decided in favour of the Applicants, the Court ought not, and indeed would not, go on to consider the constitutionality of the Act. This suggestion met with the approval of Counsel for the Plaintiffs and indeed my own approval since if these issues are decided in favour of the Plaintiffs they will obtain relief against the compulsory acquisition and considerable savings both in time and in costs will be effected. True it is that the Act will still remain without its constitutional validity being determined by the Court, but that would have been the case in any event if these issues of vires were decided in the Plaintiffs' favour at the conclusion of a full hearing. As a matter of judicial self-restraint, I would not have been prepared or entitled to declare any part of the Act unconstitutional if such was unnecessary. This would be the case if the Plaintiffs were given effective relief in respect of their argument concerning the validity of the regulations and the notices issued to them.

7. Accordingly, by agreement of the parties, the following issues fall to be determined at this stage. They are:

8. I will deal with each question in turn.

9. Did the Minister have power under the Act to make the regulations found in Statutory Instrument No 340 of 1990?

10. The backdrop against which this question must be considered is that which is set forth at Article 15.2 of the Constitution. That Article reads as follows:

11. In the present case it is said, on behalf of the Plaintiffs, that the 1989 Act did not confer any power upon the Minister to make regulations of the type purportedly made in the present case.

12. There can be no doubt but that secondary or delegated legislation is permissible under the provisions of the Constitution which I have just cited. That such is the case can be confirmed by a passage from O'Higgins C. J. in Cityview Press Limited v An Comhairle Oiliuna and others 1980 IR 381 at 398 where he said

13. This is judicial recognition, if such were required, of the entitlement of the Oireachtas to confer powers or entitlements on a designated Minister or body to make regulations which will give legal effect to principles and policies which are contained in an enactment of the Oireachtas. That the Oireachtas exercises this entitlement as a matter of regularity can be ascertained by a cursory glance through any volume of the Acts as promulgated. Sometimes the power is conferred with a proviso that any regulation or order which is made should be subject to annulment by either House of Parliament. On other occasions, it requires such regulations to be laid before each House of the Oireachtas and to be confirmed by a resolution of each such House. Such provisions are so common that it is not necessary for me to cite examples. Unfortunately, in the present case, the Act contains no express provision permitting the making of regulations of the type contained in S.I. 340 of 1990. Counsel for the Defendants was unable to advance any reason as to why this should be so. It is that omission on the part of the Oireachtas that has given rise to the Court having to consider this first question.

14. The Defendants contend that it is legitimate for me to infer a power on the part of the Minister to make the regulations in question. That contention necessarily involves a consideration of whether, as a matter of general principle, the Court can infer such a power and, if it can, I must then proceed to consider whether it should do so in the present case.

15. In support of their argument that it is legitimate for the Court on occasions to infer such a power the Defendants rely on a number of authorities. I will consider them in turn.

16. The first case which they cite is Minister for Transport and Power v Trans World Airlines Inc. which is an unreported judgment of the Supreme Court of the 6th March, 1974. In particular, they rely on the judgment of Walsh J. in that case. I do not think that that decision is authority for the proposition which is propounded by the Defendants. In that case, TWA challenged the right of the Minister to impose a 20 per cent increase in landing charges without making a formal order in the nature of a statutory instrument or a statutory order. In the course of his judgment, Walsh J. expressed the view that the relevant provisions of the Act did not require the Minister to fix his charges by the making of a statutory order or instrument. What Walsh J. held was that, because the statute gave the Minister the right to establish and maintain an airport, it carried with it the right to operate it. Implicit in the entitlement to operate it was the inherent right to determine the conditions under which aircraft would be permitted to use the airport and that would include the charges which might be made for the same. It does not appear to me that this judgment touches upon the question in issue in these proceedings at all. I do not regard it as an authority for the proposition advanced by the Defendants.

17. The next case which was relied upon was the judgment of the High Court in Cityview Press v An Comhairle Oiliuna, (1980) IR 381. I have already cited what I believe to be the relevant portion from the judgment of O'Higgins C.J. In the High Court, McMahon J. said:-

18. They also rely on the schematic approach outlined by Henchy J. in Nestor v Murphy, (1979) IR 326 at 329, where he cited a passage from Luke v Inland Revenue Commissioners, [1963] AC 557.

19. I think this particular case is of little assistance in resolving the difficulty which I have here. It was not dealing with a case where the Court was invited to imply a power into an Act of the Oireachtas to enable delegated or secondary legislation to be created.

20. Finally, reliance is placed upon a number of English cases such as Attorney General v Great Eastern Railway Co., (1885) APP.CAS.473. That case is cited as authority for the proposition that whatever may fairly be regarded as incidental to or consequential upon those things which the legislature has authorised ought not (unless expressly prohibited) to be held by judicial construction to be ultra vires .

21. Such of these cases as are relevant and of assistance to me suggest that in an appropriate case it is open to the Court to imply a power on the part of a Minister to make regulations under an enactment even though that enactment does not confer an express power upon him so to do. This amounts to nothing more than a straightforward question of statutory interpretation. All such interpretation has as its object the ascertainment of the intention of the Oireachtas. If on a fair reading of an Act it can be seen that Parliament intended to confer a power to make regulations, even though it did not expressly do so, such an entitlement may be inferred by the Court.

22. However, the circumstances in which the Court should infer such a power must be limited. At all times the Constitutional provision which I have already cited in this judgment and the views expressed by O'Higgins C.J. in the Cityview Press case, must be borne in mind. In addition, the Court is aware of the common practice of Parliament in expressly providing for such powers. If it chooses not to do so in a particular case, can such omission be regarded as mere oversight or is it part of a deliberate policy of Parliament not to permit secondary legislation? Skilled and experienced Parliamentary draftsmen are employed and if, in the course of their task, they see fit not to include an express power in draft legislation then presumably there may well be good reason for that. Finally, it is no part of the Court's function to rewrite legislation and indeed it would be constitutionally impermissible for it so to do even if it thought it desirable. Legislation is for the Oireachtas, not for the Courts. It is not for the Court to act as a revising chamber for ill-drafted legislation such as the Act in suit.

23. Having decided that the Court does in general have jurisdiction to infer a power of the type contended for by the Defendants, I now proceed to consider whether it ought to do so in the present case.

24. The Act consists of ten sections and a Schedule. The Schedule deals with compulsory acquisition of land. Section 4(3) of the Act expressly provides that the provisions of the Schedule shall have effect in relation to the acquisition of land compulsorily under the Section. Paragraph 5(3)(a) of the Schedule expressly provides that the Minister may by regulations, in such cases (if any) and to such extent as he considers necessary for the purposes of Section 4 of the Act and the Schedule, apply all or any of the provisions of Sections 69 to 83 of the Land Clauses Consolidation Act, 1845.

25. This clearly is an express power conferred on the Minister to make regulations of the type which are there specified. But no such express power is conferred with a view to making regulations of the type which are contained in S.I. 340 of 1990.

26. The fact that the Oireachtas expressly directed its attention to granting the Minister power to make regulations but confined him to such regulations as are specified in Paragraph 5(3)(a) of the Schedule to the Act must be a strong indicator that it did not wish to confer power on the Minister to make regulations other than those expressly specified. Expressio unius exclusio alterius. The application of this maxim is of course a guide and is not necessarily determinative of the issue. I must look at the Act as a whole to see whether I ought to imply into it an intention on the part of the Oireachtas to permit the making of the regulations in question.

27. In considering the Act, I note that its long title makes it apparent that it deals with a power of compulsory acquisition of land. Section 4 deals with the entitlement on the part of the Commissioners to compulsorily acquire the land. I have already quoted from subsection (3) of that section which gives effect to the Schedule to the Act in relation to the acquisition of land compulsorily under the section.

28. When one turns to the Schedule one finds detailed rules concerning the acquisition of the land in question. For example, Paragraph 1 of the Schedule sets out procedures which must be followed by the Commissioners when they propose to acquire land compulsorily which include depositing in two specified Garda Stations a map or plan of the land, the publication of a notice stating their intention to acquire the land and the giving of a copy of such notice to specified persons.

29. Paragraph 1(2) of the Schedule provides that the notices referred to in sub-paragraph 1 shall be in "the prescribed form". Such notices must give information concerning a map or plan of the land sought to be acquired. The notice must state that an objection by any occupier or owner of the land to the acquisition of the land may be submitted to the Commissioners and shall state the time within which such an objection is to be submitted.

30. Paragraph 2(2) specifies a time within which the occupier or any owner of land in respect of which one of the notices aforesaid has been published may submit to the Commissioners an objection in writing to the proposed acquisition. It then goes on to provide what is to happen concerning such an objection and it also gives permission for the withdrawal of such an objection. It then provides what is to accompany an application by the Commissioners for Ministerial consent to compulsory acquisition of the land in question.

31. Paragraph 3(3) contains further procedures which have to be followed in relation to compulsory acquisition by the Commissioners.

32. Paragraph 3(4) of the Schedule provides that a vesting order shall be in the prescribed form and shall be expressed and shall operate to vest the land to which it relates in the Commissioners in fee simple free from encumbrances. Paragraph 6 of the Schedule specifies the method of delivery of certain documents to any person concerned.

33. Finally, Paragraph 7 of the Schedule defines "prescribed" as meaning "prescribed by regulations made by the Minister".

34. In my view two things are of note concerning the Schedule to the Act.

35. First, it sets forth in considerable detail the procedure which is to be utilised with a view to giving effect to compulsory purchase. Many of the matters contained in the Schedule are of a type which one would normally expect to find in regulations. Secondly, on at least two occasions it refers to prescribed forms being used and in the definition section the word prescribed is defined as meaning "prescribed by regulations made by the Minister". The forms which have to be in a prescribed form are the notices referred to in Paragraph 1(1) of the Schedule and the vesting order mentioned at Paragraph 4(1) of the Schedule.

36. Given the fact that the word "prescribed" is defined as it is, I am of opinion that the Oireachtas clearly was minded to confer a power to make regulations of the type in suit upon the Minister. I am fortified in this view by the detailed procedures which are set forth in the Schedule and the fact that all that remained to be done was the prescribing of forms by the Minister. Accordingly, I conclude that, notwithstanding the absence of an express power in the Act to make regulations of the type in question, and furthermore, notwithstanding the express power to make regulations of a different type, there is nonetheless a clearly implied power contained in the statute itself which authorises the making of the regulations.

37. In coming to this conclusion, I have not forgotten the argument made on behalf of the Applicants that I am here dealing with powers of compulsory acquisition over land and I must therefore approach this question warily having regard to the nature of that power. Even allowing for this, it appears to me that it would be perverse to conclude that the Oireachtas did not intend to confer a power on the Minister to make regulations of the type which are being contested in these proceedings.

38. To so conclude would mean that I would effectively have to ignore the definition which is given to the word "prescribed" in Paragraph 7 of the Schedule and the reference in two different places throughout that Schedule to prescribed forms. Accordingly, I answer the first question in the affirmative.

39. If the answer to 1 above is in the affirmative, do the said regulations come within the terms of the above Act (including the Schedule)?

40. The challenge which is mounted to the regulations which were made is directed entirely to the recitals which are contained in those regulations. Insofar as they are relevant the regulations provide as follows:-

41. It is to be noted that reference is made in these recitals only to paragraphs 1(2) and 4 of the Schedule to the Act.

42. Neither in Paragraph 1(2) or 4 of the Schedule is there a power given to the Minister to make such regulations. Both of these paragraphs speak of notices being in the prescribed form. However, the word "prescribed" is defined in Paragraph 7 of the Schedule as meaning "prescribed by regulations made by the Minister".

43. In my view it would have been preferable had paragraph 7 of the Schedule been expressly referred to in the recital to the regulations which were made. The fact that it was not seems to me to be another example of sloppy draftsmanship. However, I cannot lose sight of the fact that paragraphs 1(2) and 4 of the Schedule contain the word "prescribe" which is defined in paragraph 7 as meaning prescribed by regulations made by the Minister. Accordingly, once paragraphs 1(2) and 4 are mentioned, it seems to me that by necessary implication such mention calls into play paragraph 7 of the Schedule. Such being the case, I am of opinion that the Plaintiffs' criticism has no substance and I therefore answer the second question in the affirmative.

44. If the answer to 1 or 2 above is in the affirmative are the notices the subject of these proceedings valid?

45. The complaint which is made on this aspect of the matter is as follows. The regulations made by the Minister prescribe the forms which are to be utilised for the purposes of the compulsory acquisition. Form No 1(b) requires that immediately under the heading "Compulsory Acquisition of Land" there should appear the following: "To occupier of land described in the Schedule hereto:"

46. The actual notice which was served does not contain these words. There is no reference to the fact that the form is addressed to the occupier of any such land. Apart from this omission the notice conforms precisely to what is prescribed save that the schedule to the notice does not contain the legend "Description of the land proposed to be acquired" although it does then go on to describe the lands in question.

47. Originally a point arose concerning the service of these notices but having heard evidence on this topic it was not proceeded with.

48. It appears to me that the objection which is taken here to the omission of the words which I have set out above is entirely technical and of little substance. I am of opinion that this objection is "so trivial, or so technical, or so peripheral, or otherwise so insubstantial that, on the principle that it is the spirit rather than the letter of the law that matters, the prescribed obligation has been substantially and therefore adequately, complied with". These words are taken from the judgment of Henchy J. in Monaghan UDC v Alphabet Promotions Limited (1980) ILRM at 64. They appear to me to describe the nature of the objection which is taken here.

49. I am of opinion that this objection is not one of substance and should be disallowed.

50. Accordingly, I answer the third question in the affirmative.

51. It follows, having answered all three questions in the Defendants' favour, the Plaintiffs are now free to proceed with their complaints concerning the constitutionality of the Act.