The amount of planning and environmental judicial review litigation is “of significant political and public concern”, the Attorney General has said.
If a point has been reached where the courts are “too often being used as an institutional filibuster, by litigants who seek only to delay and obstruct”, it is “perfectly reasonable for politicians to consider whether our judicial review model strikes the right balance”, Rossa Fanning has said.
The “sheer complexity” of EU law concerning planning and the environment, combined with rules limiting costs payable by plaintiffs in such litigation, “have combined to create a climate in which many reasonable people now believe that there is excessive judicial review litigation in those and other areas”, and the system “is generally too favourable to individual objectors”, he said.
There is “a view that the common good is being sacrificed on the altar of individual rights”.
RM Block
Addressing hundreds of lawyers and judges at the second annual public law conference in Dublin of the offices of the Attorney General and Chief State Solicitor, Mr Fanning said it is known the Government is looking at certain elements of this policy question.
He would not pre-empt the outcome of that consideration but wanted to point out any legal system “must effectively serve” the interests of the society governed by it and operate “to facilitate the realisation of our societal objectives, and not to frustrate them”.
It is “always open” to the Oireachtas to recalibrate legal entitlements”, he said. “After all, the law is, fundamentally, a tool by which the common good must be realised and protected.”
In an address on the theme “Government lawyers and the rule of law”, Mr Fanning said he was proud to say he is legal adviser to a Government “wholly committed to the rule of law, both domestically and internationally, and always seeks to adhere to it”.
Judges find themselves in the same boat as governments and politicians here and elsewhere in experiencing a reduced respect for institutions and office-holders and a “general coarsening” of the discourse. He noted reports of some “appalling threats” made to prominent politicians here and said judges too are subject of “much unwarranted criticism”.
Criticism of any individual court decision may or may not have validity, judges are not infallible and decisions are capable of being reversed on appeal, he said. It was “much more problematic” when the outcomes of individual cases are misrepresented or criticised, and the criticism extended to the legal system as a whole.
Ireland is fortunate to have a Government that respects the work of the courts and that is wary of populist criticisms of the judiciary, he said.
That does not mean that Government cannot reform the law or the Oireachtas cannot legislatively overrule such a judicial decision, he said.
In separate addresses, Chief Justice Donal O’Donnell and Dr Siofra O’Leary, former president of the European Court of Human Rights, considered national and supranational perspectives on respect for rights and values in “a complex Europe”.
The Chief Justice said now is a “very dangerous time” in Europe and there is “a real obligation” on all involved to show the European legal system works effectively and is “not the caricature that its enemies portray”. A starting point would be to seek to align the approaches of the European Court of Human Rights and the Court of Justice, and for the latter to adopt what Dr O’Leary had described as the consolidation approach of the ECHR, he said.
Earlier, in her opening address, Chief State Solicitor Maria Browne said, as trust in institutions erodes, it is all the more important for lawyers to live up to the highest standards. Her office may lament the significant increase in judicial review work and the challenges posed by increasing numbers of personal litigants but there can be “no complaint” about people exercising their right to access justice, she said.
