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Cite as:  IESC 5,  1 ILRM 419,  1 IR 72
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Mulcreevy v. Minister for Environment, Heritage and Local Government & Ors  IESC 5 (27 January 2004)
APPLICANT / APPELLANT
JUDGMENT delivered the 27th day of January 2004, by Keane C.J.
The lands at Carrickmines, Co. Dublin, which are the subject of these proceedings, contain the remains of Carrickmines Castle, a site which is clearly of considerable historical and archaeological interest. The second named respondents (hereafter "the local authority") are engaged in a major road scheme known as "The South Eastern Motorway Scheme". It is not in dispute in these proceedings that the construction of the motorway has been authorised under the relevant legislation and that it forms a strategic element of the national road network, providing a high speed link between the N11 and other national primary routes around Dublin. The route of the motorway traverses part of the Carrickmines Castle site and, since the route was decided upon, extensive archaeological works have been carried out by consultants appointed by the local authority at sites affected by the motorway. It is not in dispute that the remains of Carrickmines Castle are a "national monument" within the meaning of the National Monument Acts, 1930 to 1994, and that the construction of the motorway, as it proceeds, will necessitate the removal of some of the remains, including, in particular, what is described as a granite stone masonry revetment forming part of the defensive structures of the castle, and some of which has already been removed. It is the intention of the local authority to reconstruct that section elsewhere on the site which they own. It should be added that it is also not in dispute that the archaeological excavations carried out on behalf of the local authority have involved an expenditure of in excess of 6 million and the employment of up to 200 archaeologists.
The fact that the motorway works have, and will, result in the removal or destruction of part of the archaeological remains in question has led to much controversy. In previous proceedings in the High Court and in this court arising out of the construction of the motorway, to which it will be necessary to refer in more detail at a later stage, it emerged that there was a sharp difference of view between Dr. Valerie J. Keeley, an archaeologist who was the director of a consultancy firm retained by the local authority, and a historian, Dr. Sιan Duffy, as to the extent and significance of the removal or destruction. Dr. Keeley was of the view that the archaeological procedures implemented on the site had been entirely appropriate, contrary to the view of Dr. Duffy. In these proceedings, Dr. Mark Clinton, an archaeologist who was the site director for the excavation programme from 1st September, 2002 until 11th October, 2003 swore an affidavit in which he takes issue with the approach adopted by Dr. Keeley.
It is not necessary for this court to attempt to resolve this difference of opinion between professionally qualified and experienced archaeologists, any more than it was necessary for the High Court to do so. Not is it necessary for the court to determine where the balance must be struck between the preservation of what is acknowledged to be a site of great archaeological and historic interest and the implementation of a major infrastructural project.
To understand the issues which have arisen in the High Court and again in this court, it is necessary at the outset to summarise briefly the history of the earlier proceedings to which I have already referred and which are now reported under the title Dunne & Anor v- Dun Laoghaire Rathdown County Council  1 IR 567. In that case, the plaintiffs issued proceedings in which they sought injunctive relief restraining the local authority from removing parts of the monument. Their application for an interlocutory injunction granting them that relief pending the hearing of the action was refused in the High Court. Their claim was essentially that the plaintiffs, before proceeding with the works, required the joint consent of the first named respondent in these proceedings (hereafter "the Environment Minister") as the successor of the Commissioners of Public Works in Ireland (hereafter "the Commissioners") and the local authority. It was conceded on behalf of the local authority that the consent of the Environment Minister had not been obtained, but in addition to advancing other arguments based on matters such as the standing of the plaintiffs, laches and the balance of convenience, it was also urged on behalf of the local authority that the consent of the Environment Minister was in any event unnecessary since it was that minister who had authorised the road project in question and that they had also been granted an excavation licence to carry out archaeological digging under another provision of the legislation. That submission was rejected by Hardiman J. with whom the other members of the court, Geoghegan J. and McCracken J. agreed, and the court also rejected the other arguments advanced on behalf of the local authority against the granting of the injunctive relief.
Thereafter, the local authority applied to the Environment Minister for the necessary consent. A joint consent of the local authority and the Environment Minister was given on 3rd July, 2003 and on the same day the Environment Minister made the National Monuments (Approval of Joint Consent) Order, 2003. The order stated that it was being made by the Minister because he considered
"that the public interest in the construction of the South Eastern Motorway along the approved route justifies the carrying out of works described in the joint consent impacting on archaeology at the site "
It is agreed in this case that, before the works restrained by the interlocutory injunction could proceed, it was necessary that this order should be laid before both Houses of the Oireachtas and that it would not become effective until 21 sitting days of both Houses had elapsed during which no resolution to annul the order had been passed by either House. It is accepted that, accordingly, the order did not come into effect until the 2nd December, 2003. The interlocutory injunction granted by this court was discharged by the High Court on 8th December, 2003 and, on that day, the local authority stated that it would be taking the appropriate steps to implement the approval given by the Environment Minister.
On 23rd December, 2003 an application was made on behalf of the plaintiffs to the High Court for leave to issue proceedings by way of judicial review claiming inter alia
(i) An order of certiorari of the National Monuments (Approval of Joint Consent) Order, 2003 made on 3rd July, 2003 (hereafter "the approval order");
(ii) An order of prohibition prohibiting the local authority from in any way demolishing, removing (in whole or in part), disfiguring, defacing, altering, injuring or interfering in any way with the monument;
(iii) An injunction against the local authority to the same effect pending the hearing of these proceedings.
The grounds on which the relief were claimed were as follows:
(i) The approval order was ultra vires the provisions of the National Monument Acts, 1934 to 1994, since it was neither in the interests of archaeology nor in the interest of public health or safety to make the order and there was no other ground on which the order could be made;
(ii) The ground given by the Environment Minister for making the approval order that it was in the public interest that the South Eastern Motorway should be constructed along the route in question was not a ground which could lawfully justify the granting of the approval order;
(iii) The Heritage (Transfer of Functions of Commissioners of Public Works) Order, 1996 (SI 61 of 1996) (hereafter "the 1996 order") and the Heritage (Transfer of Departmental Administration and Ministerial Functions) Order, 2002 (SI 356 of 2002) (hereafter "the 2002 order") whereby the functions of the Commissioners and the Minister for Arts, Culture and the Gaeltacht (hereafter "the Arts Minister") relating to the grant of the approval order were purportedly transferred to the Environment Minister were ultra vires the parent legislation and of no effect;
(iv) The said works were being carried out without a licence under s. 26 of the National Monuments Act, 1930, which was required for digging or excavating for any archaeological purpose.
The applicant, who lives in Kerry, said in a grounding affidavit that he had no private interest in the proceedings but was seeking as a citizen to ensure that a national monument was not, as he put it, irreparably damaged by the local authority without having obtained the necessary statutory approvals, consents and licenses.
The application for leave to issue the proceedings by way of judicial review was made on notice to the Environment Minister and the local authority and was heard by Gilligan J. While satisfied that the applicant had standing to institute the proceedings, he was of the view that, although in so far as they sought relief by way of certiorari, they were brought within the period of six months prescribed by Order 84, Rule 21(1) of the Rules of the Superior Courts, they had nonetheless not been brought sufficiently promptly and he accordingly refused to grant any of the reliefs sought. From that judgment, the applicant has now appealed to this court.
On the hearing of the appeal, the Environment Minister and the local authority, in addition to contesting the grounds relied on by the applicant in the High Court, also relied on what was said to be his lack of locus standi and his failure to move with sufficient promptness, as found by the High Court.
While the applicant accepts that he has no private interest in these proceedings, it is not suggested that he has brought them for any other reason than to ensure that the national monument is not damaged irreparably, as he claims it would be, by the local authority carrying out the motorway project without the necessary statutory consents, approvals and licenses.
It has been made clear in decisions of the High Court and this court in recent times that it is not in the public interest that decisions by statutory bodies which are of at least questionable validity should wholly escape scrutiny because the person who seeks to invoke the jurisdiction of the court by way of judicial review cannot show that he is personally affected, in some sense peculiar to him, by the decision. It is in that sense, I think, that the requirement in Order 84, Rule 20(4) of the Rules of the Superior Courts, 1986 should be read. It provides:
"The court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates."
It is at the same time essential to bear in mind that, while it is undesirable that invalid legislation or unlawful practices should escape scrutiny because of the absence of an indisputably qualified objector, it is also important to ensure that unfounded and vexatious challenges are not entertained.
While the respondents relied on the decision of this court in Lancefort Ltd. v- An Bord Pleanala No. 2  2 IR 270, there were features of the applicants / appellants position in that case which render it clearly distinguishable from these proceedings. In the first place, the applicant was a company limited by guarantee which was not even in existence at the time the planning decisions which were being challenged had been made. Secondly, the company itself had been promoted by an objector who had participated actively in the oral hearing which led to the grant of planning permission but had not relied on the ground which the company subsequently sought to rely on by way of challenge to the decision. Thirdly, the ground itself was held by this court not in any event to be a "substantial" ground under the relevant planning legislation and it was emphasised that the courts were obliged to have serious regard to that requirement in the case of challenges of that nature.
This is not a case in which, as under the planning code, the legislature has provided an elaborate appeals procedure and by other legislative provisions has sought to ensure that the judicial review procedure should not be availed of as a form of further appeal. In this case, moreover, as will shortly appear, in at least one instance it most certainly cannot be said that the ground on which the applicant seeks to rely is without substance.
I would, accordingly, agree with the conclusion of the learned trial judge that the applicant had locus standi to institute the present proceedings.
Order 84, Rule 21(1) provides that
"An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when the grounds for the application first arose, or six months where the relief sought is certiorari, unless the court considers that there is good reason for extending the period within which the application shall be made."
It is clear from the terms of this rule that, depending on the circumstances of the particular case, it may not be sufficient for a person seeking relief by way of certiorari to move within the six months period, as happened here. Even within that period, the obligation remains on him to move promptly and the importance of the time element has been repeatedly stressed by the courts: see in particular the judgments of Denham J. and Fennelly J. in De Roiste v- Minister for Defence  1 IR 190. While the question as to whether the period of delay involved should be excused must inevitably depend on the circumstances of the particular application, it is undoubtedly the case that where, as here, the proceedings concern a large infrastructural project and substantial expense may result to the public as a result of unnecessary delay, the time factor requires special attention.
In the present case, the applicant did not bring his proceedings until the period within which the approval order could be annulled by resolution of either House had expired. That happened on 2nd December, 2003 and the application to the High Court was made three weeks later, on 23rd December.
It was contended on behalf of the respondents that the applicant should have instituted his proceedings when the approval order was made on 3rd July, 2003, since that was when the ground of challenge "first arose" within the meaning of Order 84, Rule 21. It was argued that the procedure involved in laying the order before the Houses of the Oireachtas was in no sense equivalent to an appeal: the order sought to be impugned had either been properly made or not at that stage and, if it was improperly made, the defect bringing about that result could not be cured by there being no resolution to annul the decision passed in either House of the Oireachtas.
That submission seems to me to disregard the difficulties which might have confronted the applicant if he had made his application for leave before the 21 sitting day period for annulling the order had elapsed. It is unnecessary to determine whether, if he had brought his application at that stage, the court would have dismissed it on the ground that it was premature since, for all the court knew, the Oireachtas might annul the approval order. It is sufficient to say that the applicant cannot be regarded as having acted unreasonably in not instituting proceedings to challenge a statutory consent / approval which was devoid of legal effect until the relevant period had expired. Until that happened, the interests of neither the applicant nor the local authority were affected, since it was not possible for the latter to resume the works until such time as the approval order became effective and the interlocutory injunction in the existing proceedings had been discharged. I am satisfied, accordingly, that the relevant period of delay was no more than three weeks, which was not contended to be, of itself, a period of sufficient length to disentitle the applicant to the relief claimed.
The standard for granting leave
The standard applicable to an application for leave to apply for judicial review was described as follows by Denham J. in G. v- Director of Public Prosecutions  1 IR 374:-
"The burden of proof on an applicant to obtain liberty to apply for judicial review under the Rules of the Superior Courts, Order 84, Rule 20, is light. The applicant is required to establish that he has made out a stateable case, an arguable case in law. The application is made ex parte to a judge of the High Court as a judicial screening process, a preliminary hearing to determine if the applicant has such a stateable case."
Since, in the present case, the application was made on notice to the respondents who were represented at the hearing in the High Court, it is submitted that a stricter standard is appropriate. In support of that submission, the court was referred to the following passage from the judgment of Glidewell L.J. in Mass Energy Ltd. v- Birmingham CC.  Env. Lr 298 at pp. 307:-
"First, we have had the benefit of detailed inter partes argument of such depth and in such detail that, in my view, if leave were granted, it is more unlikely that the points would be canvassed in much greater depth or detail at the substantive hearing. In particular, we have all the relevant documents put in front of us Thirdly, as I have already said, we have most, if not all, of the documents in front of us; we have gone through the relevant ones in detail indeed in really quite minute detail in some instances in a way that a court dealing with an application for leave to move rarely does, and we are thus in as good a position as would be the court at the substantive hearing to construe the various documents.
For those reasons taken together, in my view, the proper approach of this court, in this particular case ought to be and the approach I intend to adopt will be that we should grant leave only if we were satisfied that Mass Energy's case is not merely arguable but is strong; that is to say, is likely to succeed."
In another English decision, R. v- Cotswold District Council  75 P&CR 515, Keene J. (as he then was), having referred to Mass Energy, said
" I would prefer to put it on the basis that where the court seems to have all the relevant material and has heard full argument at the leave stage on an inter partes hearing, the court is in a better position to judge the merits than is usual on a leave application. It may then require an applicant to show a reasonably good chance of success if he is to be given leave."
It may be noted that the learned judge in that passage seems to have avoided the use of the expression a "strong" case used by Glidewell L.J.
These passages were cited with approval by Kelly J. in Gorman v- Minister for the Environment  1 IR 306. He decided in that case, however, to apply the standard laid down in G. v- Director of Public Prosecutions and his comments should therefore be regarded as obiter.
For reasons which will subsequently appear, I am satisfied that in this case also it is unnecessary to decide the issue as to whether a higher standard should be required in a case such as the present. It is sufficient to say that, where the application has been made on notice and the other side has been heard, it may well be that there will be no outstanding issue of fact which has to be resolved at a full hearing and that the court hearing the application for leave may indeed be in as good a position as the court which hears the ultimate application to determine the legal issues involved.
The statutory framework
The National Monuments Act, 1930 (hereafter "the 1930 Act") is described in its long title as
"An Act to make provision for the protection and preservation of national monuments and for the preservation of archaeological objects in Saorstαt Eireann and to make provision for other matters connected with the matters aforesaid."
Section 14(1) provides that
"It shall not be lawful for any person (whether he is or is not the owner of the monument or is or is not seised or possessed of an estate or interests therein) to do any of the following things in relation to a national monument of which the Commissioners or a local authority are the owners or the guardians or in respect of which a preservation order is in force, that is to say:-
(a) to demolish or remove wholly or in part or to disfigure, deface, alter, or in any manner injure or interfere with any such national monument without or otherwise than in accordance with the consent hereinafter mentioned, or
(b) to excavate, dig, plough or otherwise disturb the ground within, around, or in proximity to any such national monument without or otherwise than in accordance with the consent hereinafter mentioned, or
(c) to sell for exportation or to export any such national monument or any part thereof."
The site which is the subject of these proceedings is agreed to be a "national monument" of which the local authority are the owners. It follows that the motorway project being implemented by the local authority, to the extent that it involves either of the activities mentioned in subparagraphs (a) or (b), required the consents set out in the later part of s. 14. Subsection (2) provides inter alia that
"The consent hereinbefore mentioned is in the case of a national monument of which a local authority are the owners or the guardians, the joint consent in writing of the Commissioners and such local authority."
In this case, accordingly, the joint consent in writing of the Commissioners and the local authority was required under s. 14 of the 1930 Act as unamended.
Section 14(3) provides that
"The Commissioners and every local authority are hereby respectively authorised to give such consent as is mentioned in the foregoing sub-section if and whenever they think it expedient in the interests of archaeology or for any other reason so to do and are hereby further authorised to attach to any such consent all such conditions and restrictions as they think fit."
The joint consent could, accordingly, under these provisions, prior to their amendment, be given whenever the Commissioners and the local authority thought it expedient in the interests of archaeology or for any other reason to give the consent. Thus, in a case, such as the present, where the demolition or removal of any part of the monument could not be thought to be in the interests of archaeology, the Commissioners and the local authority were vested with a wide discretion to give the consent "for any other reason".
The amendments brought about to these provisions by s. 15 of the National Monuments (Amendment) Act, 1994 (hereafter "the 1994 Act") must next be considered. It can be said immediately that they were effected in a remarkably tortuous and oblique fashion. The relevant provisions are as follows:-
"15(1) Section 14 of the [1930 Act] is hereby amended by the insertion after subsection (3) of the following subsections:
'(3A) The consent referred to in subsection (2) of this section shall not be given by the Commissioners or the Commissioners and a local authority, in a case referred to in paragraph (a) of subsection (1) of this section, unless it is in the interests of archaeology to do so or the Minister [for Arts, Culture and the Gaeltacht] has approved of the giving of that consent.
(3B) Subject to subsection (3C) of this section, on being requested to approve of a consent under this section, in a case referred to in paragraph (a) of subsection (1) of this section, the Minister [for Arts, Culture and the Gaeltacht] may either give such approval or refuse to give such approval and where he gives such approval he shall give it by (other than in a case referred to in subsection (3C) of this section) making an order in that behalf which said order shall set out the terms and conditions, if any, of his approval.
(3C) On being requested to approve of a consent under this section, the Minister [for Arts, Culture and the Gaeltacht] may approve of the consent referred to in subsection (3A) of this section in a case referred to in paragraph (a) of subsection (1) of this section where he thinks it expedient to do so in the interests of public health or safety.
(3D) An order made under this section shall be laid before each House of the Oireachtas as soon as may be after it is made and, if an order annulling the order is passed by either such House within the next 21 days on which that House has sat after the order is laid before it, the order shall be annulled accordingly, but without prejudice to the validity of anything previously done thereunder."
Despite the manner in which it has been drafted, the effect of this amendment is clear. In the first place, it substitutes for the controls imposed by the original s. 14 on any interference with a national monument a new hierarchy of controls. Under the section as originally enacted, such interference was unlawful unless the owner obtained the consent both of the Commissioners and the local authority. Thus, the consent of two distinct and independent statutory bodies with different remits was required. The result of the amendment, however, was to require the consent of a third statutory body, again with a different statutory remit, i.e. the Arts Minister.
The second effect of the amendment was significantly to qualify the wide residual discretion formerly vested in the Commissioners and the local authority. They could grant the joint consent themselves only where it was in the interests of archaeology to do so. In any other case, their consent was ineffective unless it was approved of by the Arts Minister. Moreover, except where the Arts Minister approved of the consent because he thought it expedient so to do in the interest of public health or safety, the order made by him approving the consent had to be laid before each House of the Oireachtas as soon as might be after it was made. If an order annulling the order was passed by either House within the next 21 days on which the House sat after the order was laid before it, the order was to be annulled.
Finally, it should be noted that these changes took effect only where the owner or any other person proposed
"(a) to demolish or remove wholly or in part of to disfigure, deface, alter, or in any manner injure or interfere with any such national monument "
It did not apply where the proposal was within subparagraph (b), i.e.
"(b) to excavate, dig, plough or otherwise disturb the ground within, around, or in proximity to any such national monument "
The effect of the amendment, accordingly, in the present case was that the Commissioners and the local authority could not give an effective consent to any demolition or removal of the site, unless it was in the interests of archaeology to do so, which it clearly was not. Accordingly, they required the approval of the Arts Minister and, since it could not be regarded as a case where it was in the interest of public health or safety to effect any such removal or demolition (as it would be, for example, if part of a building were about to collapse), the order made by the Arts Minister approving of the joint consent of the Commissioners and the local authority had to be laid before each House of the Oireachtas.
The 1996 order must next be considered. It was made by the Government, in purported exercise of the power conferred to them by s. 9(2) of the Ministers and Secretaries Act, 1924 (hereafter "the 1924 Act"). Article 3(1) provides that
"The functions vested in the Commissioners by or under any enactment or other provision mentioned in the Schedule to this order are hereby transferred to the Minister [for Arts, Culture and the Gaeltacht]."
Included in the Schedule are the 1930 Act and the 1994 Act.
Again, the purported effect of this provision is not in doubt. The consent of the Commissioners, which together with the consent of the local authority, was formerly a precondition to a lawful interference with a national monument was now no longer required. In its place, there was a requirement that the consent of the Arts Minister, in whom there was already vested the ultimate power of approval, be obtained. The provision, accordingly, purported to replace the hierarchy of controls requiring the consent or approval of three entirely distinct and independent statutory bodies with different remits, the Commissioners, the local authority and the Arts Minister, by a different system of control, requiring the approval or consent of two bodies only, the local authority and the Arts Minister.
The 2002 order was made by the Government in purported exercise of the powers conferred on them by s. 6(1) of the Ministers and Secretaries (Amendment) Act, 1939. It would appear that, in the interval, the relevant functions of the Arts Minister had been transferred to the Minister for Community, Rural and Gaeltacht Affairs. Article 4(1) provided inter alia that
"The functions vested in the Minister for Community, Rural and Gaeltacht Affairs
(a) By or under any of the instruments or the provisions of the enactments mentioned in Part I of the Schedule to this order are transferred to the [Environment Minister]."
Part I of the Schedule includes the 1930 Act and the 1994 Act.
The result, accordingly, was that the system of control by two independent statutory bodies with different remits which had been purportedly substituted for the three tier structure created by the 1994 Act remained in being, but with the Environment Minister substituted for the Arts Minister.
Finally, I should refer to s. 26(1) of the 1930 Act which provides that
"It shall not be lawful for any person, without or otherwise than in accordance with a licence issued by the Commissioners under this section, to dig or excavate in or under any land (whether with or without removing the surface of the land) for the purpose of searching generally for archaeological objects or of searching for, exposing or examining any particular structure or thing of archaeological interest known or believed to be in or under such land or for any other archaeological purpose."
By virtue of the 1996 order and the 2002 order, the licenses required under this provision are now to be granted by the Environment Minister in place of the Commissioners.
The grounds on which judicial review is sought
The order of the Environment Minister of 3rd July, 2003 approving the joint consent given by him and the local authority on the same day was challenged on the ground that the reason given by the Environment Minister for the approval the public interest in the construction of the motorway was not a valid reason contemplated by the Oireachtas when the 1930 Act and the 1994 Act were enacted. It was argued that where, as here, the interference with the monument could not be justified on the ground that it was in the interests of archaeology or was required in the interest of public health or safety, the approval of the Environment Minister could only be given where he was implementing the stated policy of the legislation, i.e. the protection and preservation of national monuments and archaeological objects.
I am satisfied that this argument is entirely misconceived and that the applicant has failed to establish a stateable or arguable case to support this ground. The Oireachtas plainly intended that, in cases where neither archaeological considerations nor public health and safety could be invoked, the Environment Minister should enjoy a wide residual discretion to permit the interference with the national monument, subject to the qualification that his order had to be laid before the Houses of the Oireachtas. To confine the exercise of his discretion to cases in which it could be said that he was ensuring the protection or preservation of a national monument or the preservation of archaeological objects would be to render that residual discretion entirely meaningless, since the acts contemplated by the approval the destruction, removal, etc. of the monument in whole or in part far from protecting or preserving the monument would have precisely the opposite effect. If this argument were well founded, no such approval could ever be given.
The order was, however, also challenged on the ground that the 1996 order and the 2002 order, purporting to transfer the power of the Commissioners to consent jointly with the local authority to an interference with a national monument and of the power of the Arts Minister to approve such a joint consent to the Environment Minister, were ultra vires the parent Act in each case. It was submitted that, in purporting to substitute for the scheme, under which the consent of three independent statutory bodies had to be obtained, a scheme under which the consent or approval of two bodies only was necessary, the statutory instruments were purporting to amend the relevant provisions of the 1994 Act and that this could not be achieved by way of delegated legislation.
Article 15.2.1o of the Constitution provides that
"The sole and exclusive power of making laws for the State is hereby vested in the Oireachtas: no other legislative authority has power to make laws for the State."
It is well established that the exclusive role assigned to the Oireachtas in the making of laws by this Article does not preclude the Oireachtas from empowering Ministers or other bodies to make regulations for the purpose of carrying into effect the principles and policies of the parent legislation. (See Cityview Press Ltd. v- An Chomhairle Oiliuna  IR 381. But it is also clear that such delegated legislation cannot make, repeal or amend any law and that, to the extent that the parent Act purports to confer such a power, it will be invalid having regard to the provisions of the Constitution. Thus, in Cooke v- Walsh  IR 710, O'Higgins C.J., delivering the judgment of this court, said
" It is necessary to seek a meaning for [the words in the statute] which absolve the national parliament from any intention to delegate its exclusive power of making or changing the laws. Needless to say, if such a meaning is not possible then the invalidity of the subsection would be established."
It is also clear that, in accordance with the principle of construction applicable in such circumstances, the courts, where it is possible so to do, will adopt a construction of the parent statute which does not empower the making, repeal or amendment of any law by a form of delegated legislation. Giving the judgment of the court in Harvey v- The Minister for Social Welfare  2 IR 232, Finlay C.J. said
"The court is satisfied that the terms of [the relevant Act] do not make it necessary or inevitable that a Minister making regulations pursuant to the power therein created must invade the function of the Oireachtas in a manner which would constitute a breach of the provisions of Article 15.2 of the Constitution. The wide scope and unfettered discretion contained in the section can clearly be exercised by a Minister making regulations so as to ensure what is done is truly regulatory or administrative only and does not constitute the making, repealing or amending of law in a manner which would be invalid having regard to the provisions of the Constitution."
It is, accordingly, necessary to consider in the first place whether the 1996 order purported to amend the provisions of s. 14 of the 1930 Act as amended by s. 15 of the 1994 Act. As has already been pointed out, the effect of that order was beyond argument to substitute for the statutory regime established under the 1994 Act, where three entirely distinct and independent statutory bodies with different remits had to give their consent or approval to the interference with the national monument before it could be lawfully effected, a different statutory scheme under which the approval or consent of two bodies only, the local authority and the Arts Minister (now the Environment Minister), was required. The statutory body giving the ultimate approval was no longer a different body: the Environment Minister, having himself already jointly authorised the interference with the national monument, there was no further independent approval by a different body required. The Oireachtas had plainly considered it appropriate that the statutory body giving the ultimate decision (subject in some cases, such as this, to its possible annulment by the Oireachtas) should be vested in a body other than the two bodies which had jointly authorised the interference initially, i.e. the Environment Minister and the local authority. It is difficult to see on what basis it could be suggested that it envisaged what was in effect a two-pronged rather than a three-pronged consent or approval. The conclusion is almost inescapable, in my view, that the 1996 order purported to amend s. 15 of the 1994 Act by substituting this new statutory regime.
Section 9(2) of the 1924 Act, as adapted, provides that
"It shall be lawful for the [Government]
(a) by an Order of the [Government] to transfer to and confer or impose on any Minister any of the jurisdictions, powers, duties, and functions of any Board of Commissioners or statutory body to which this section applies "
The combined effect of s. 1(ii) and of the first part of the Schedule to the 1924 Act is that the Commissioners of Public Works in Ireland are a "Board of Commissioners" within the meaning of s. 9(2). If the effect of the 1996 order was simply to transfer the functions of the Commissioners under the 1930 Act and the 1994 Act to the Arts Minister, it would clearly be intra vires the 1924 Act. For the reasons I have given, however, it seems difficult to avoid the conclusion that it did more: that it purported to effect an amendment of the statutory scheme established under s. 15 of the 1994 Act. Having regard to the canon of construction adopted by this court in Cooke v- Walsh and Harvey v- Minister for Social Welfare, it again seems difficult to avoid the conclusion that, construed in accordance with Article 15.2.1o of the Constitution, s. 9(2) of the 1924 Act cannot be interpreted as conferring any power on the Government to make an order having that effect.
It follows inevitably, from what I have said, that I would reach the conclusion that, even adopting the more rigorous judicial review standard already referred to as possibly applicable in inter partes cases such as the present, the applicant has established in this case an arguable ground of challenge to the order of 3rd July, 2003 based on the invalidity of the 1996 order. To that extent, I would allow the present appeal.
The Schedule to the 1996 order sets out a number of statutes and regulations in addition to the 1930 Act and the 1994 Act in respect of which the functions vested in the Commissioners are transferred to the Arts Minister. No arguments were addressed to us as to whether, assuming that the submission that the order was ultra vires was correct, the result was to invalidate also the purported transfer of the Commissioners' functions under the other statutes and regulations or whether it would be possible to sever the provisions which are ultra vires from the rest of the instrument.
The law in the United Kingdom is stated as follows in the 4th Edition of Bennion on Statutory Interpretation at p. 211
"Where possible, the court will sever the provision which is ultra vires from the rest of the [statutory] instrument. If the instrument consists of a collection of separate units, each of which is say a rule, a regulation or a by-law, severance is likely to be easier. However the question of severance does not depend on a 'blue pencil test'. In accordance with principle, the court will sever the invalid provision from the valid notwithstanding that this cannot be done neatly by textual amendment."
Since the point has not been argued and can in any event, if necessary, be the subject of further submissions at the hearing of the application for judicial review itself, it is unnecessary for me to express any view on it at this stage.
The validity of the 1996 order and the 2002 order were also challenged on the ground that in permitting the Environment Minister to make a decision granting an approval in respect of a consent to which he was already a party, it violated the requirement as to fair procedures guaranteed by Article 40.3 of the Constitution. It was, it was said, a breach of the requirement of natural justice, nemo iudex in causa sua, i.e. that no one should be a judge in his own cause. That argument, however, is wholly at variance with the law as stated by this court in O'Brien v- Bord na Mσna  IR 255. In that case, it was held that Bord na Mσna, in deciding whether to reject objections to a compulsory purchase of lands on which they had decided and which they were bound by statute to consider before proceeding with the acquisition were not exercising a judicial power within the ambit of Article 34 of the Constitution and that, accordingly, the power given to the Board was not vitiated, since the nemo iudex principle had no necessary application to administrative procedures of that nature. The same considerations would clearly arise in the present case and I am satisfied that the applicant has not shown an arguable or stateable case based on that ground.
There remains the challenge based on the alleged absence of a valid licence under s. 26 of the 1930 Act. This was grounded on s. 21 of the 1994 Act which provided that the Commissioners, having consulted with the Director of the National Museum of Ireland, might issue such a licence. The objection taken was that, in the light of communications received from officials of the National Museum, it would appear that there was no such consultation in respect of the licence allegedly in force at the time of the hearing in the High Court. That licence, however, was in turn an extension of an earlier licence granted after consultation with the museum and bears the same number as the earlier licence. Since the licence relied on at the relevant time was no more than an extension of a licence already granted in respect of which it is conceded that there had been the appropriate consultation, there would appear to be no substance in this ground. However, altogether apart from that consideration, even were the excavation licence under s. 26 to be of no effect, the local authority would be perfectly entitled to carry out the work of demolition, removal, etc. of the monument in reliance on a consent and approval validly issued under s. 14 of the 1930 Act as amended by s. 15 of the 1994 Act. Moreover, while I have already indicated that I am satisfied that the applicant had established a locus standi to challenge the validity of the order of 3rd July, 2003, different considerations might well apply where he was seeking to challenge a licence granted solely for the purpose of digging or excavating for archaeological objects and not in any way necessarily related to the removal or demolition of any part of the national monument. I am satisfied that no arguable or stateable case has been made out in respect of this ground of challenge.
I would allow the appeal and substitute for the order of the High Court an order giving the applicant leave to apply by way of judicial review for an order of certiorari of the order of the Environment Minister made on 3rd July, 2003 approving the joint consent of the Environment Minister and the local authority given on that day for the demolition, removal in whole or in part, disfigurement, defacement, alteration, injury or interference with a national monument, the property of the local authority, being the remains of the Carrickmines Castle complex. I would grant that relief on the grounds set out in paragraph (e), (x) and (xi), of the statement of grounds and on no other grounds. I would hear counsel on the question as to what form of interim or interlocutory relief, if any, should be granted to the applicant at this stage.