Carrickmines work order struck down as unconstitutional

The High Court yesterday overturned the Minister for the Environment's approval of works involving the destruction or removal of medieval remains at Carrickmines Castle on the site of the proposed M50 road extension.

In the second High Court judgment in two weeks striking down Government orders as unconstitutional, Mr Justice Kearns found that the Government had no power to make orders in 1996 and 2002 which changed the scheme under which consents may be given for works which destroy a national monument.

Given that finding, he quashed the order of the Minister for the Environment of July 3rd, 2003, approving the Minister and DúLaoghaire Rathdown County Council's joint consent of that same day for the demolition, removal in whole or in part, disfigurement or other interference with the remains of a national monument, the Carrickmines Castle complex.

The judge said the case involved "a simple point", whether primary legislation could be amended by secondary legislation. It could not, he found.

The effect of the decision means the Government will have to enact new legislation before the rest of the medieval remains may be removed from the site at Carrickmines.

Some remains have already been removed and are being preserved.

The alternative, urged by a Co Kerry man, Mr Michael Mulcreevy, who brought the legal challenge, is to build the M50 extension around the remains. After the judge's decision, Mr Mulcreevy said: "This is a marvellous opportunity for the Minister and Dún Laoghaire Rathdown County Council to build a road around the remains which we have urged all along they should do."

However, lawyers for the State and the council had earlier ruled out that option in court. Mr James Connolly SC, for the Minister, said the necessary legislation would be introduced.

Mr Dermot Flanagan SC, for the council, gave an undertaking that no works would be carried out at the Carrickmines site which involved destruction, removal, defacement or intervenes with the medieval remains at Carrickmines. The undertaking applied pending the enactment of amending legislation.

While finding in favour of Mr Mulcreevy's argument that the relevant Government orders of 1996 and 2002 were in excess of the Government's powers, Mr Justice Kearns described the matter as a "technical glitch". He said a major infrastructural project was involved and there was an "overriding requirement" to bring an end to the litigation surrounding Carrickmines.

The judge was ruling on Mr Mulcreevy's judicial review challenge.

Earlier this week, the Supreme Court granted Mr Mulcreevy's appeal against the High Court's refusal to permit him take that judicial review.

The Supreme Court found Mr Mulcreevy had established a "substantial" case to the effect that the Government was not empowered to enact orders in 1996 and 2002 (Statutory Instruments 61 and 356) which had established a new scheme of consents to any works involving the removal, defacing or destruction of a national monument.

Mr Mulcreevy argued the orders of 1996 and 2002 had replaced a former three-tiered system of consent to such works with a two-tiered system and this, he argued, was in effect an amendment of the National Monuments Acts 1930 to 1994. He argued the Constitution did not permit secondary legislation (regulations or orders) to amend laws.

Under the National Monuments Acts, the scheme of consent for works to a national monument involved such works being approved by the Commissioners for Public Works, the local authority which owned the monument and the Minister for Arts.

The 1996 regulations altered that situation to one where the works had to have the consent of the local authority and the Minister for Arts.

The 2002 regulations replaced the Minister for Arts with the Minister for the Environment and provided for a situation where the latter had to approve the joint consent of the local authority and the Minister for the Environment to any works which were not in the interest of archaeology and were not in the interest of public health and safety.

Yesterday, Mr Colman Fitz-gerald SC, for Mr Mulcreevy, argued that this new scheme of consents had the effect of amending the National Monuments Act and this was impermissible under the Constitution. He also argued the new scheme was less rigorous than the old scheme and involved a situation where the Minister for the Environment could grant consent for works defacing a national monument and then approve his own consent.

Opposing the application, Mr James Connolly SC, for the Minister, submitted that the Commissioners for Public Works were always subject to the Minister for Arts and therefore the 1996 regulations did not replace a three-tier scheme of consent with a two-tier scheme.

The 1996 and 2002 orders did not amend the National Monuments Acts.

While accepting secondary legislation could not amend laws, he argued any such amendment had to be substantial. He denied that either of the 1996 or 2000 orders were in excess of the Government's powers.

Giving his judgment, Mr Justice Kearns said the issue was whether the matters complained of were administrative functions or functions that fell within the contemplating of the legislature so as to permit alterations of these without the requirement for statutory change.

The effect of the 1996 order was that one of three statutory agencies was effectively removed from the consent-giving process or merged into it and the question was whether it was permissible to do that. In his view, it was not.