THE PRESIDENT of the High Court was “extremely mindful” of the separation of powers between the executive and the judiciary in his ruling that the Donegal South West byelection should take place within a reasonable time, according to an expert in judicial review.
Conleth Bradley SC told the Thomson Round Hall conference on judicial review at the weekend that Mr Justice Kearns had stressed that purely political issues and the purposes for which funds are spent are entirely outside the proper role of the court. However, this was not such an issue.
In the Nama case the divisional (three-person) court of the High Court accepted it was dealing with policy measures, but found that much of the evidence presented during the proceedings related to policy issues and, therefore, was irrelevant to the matters to be decided by the court.
He said this was an important judgment in that it outlined very clearly the different roles of the executive, the legislature and the judiciary.
In relation to the judiciary, it established that the interpretation of any measures that affect legal rights is a matter for the courts. So is the question of how legislation, properly interpreted, is to be applied to the facts of any individual case.
“In Dellway [the Nama case] the divisional court simultaneously emphasised its respect for the separation of powers and jealously guarded its own role in this constitutional matrix,” Mr Bradley said.
He said the court went out of its way to emphasise that it had no role in assessing whether there might have been better ways of addressing the economic and financial problems facing the State, while being conscious that it was almost certain the existing banks could have ceased to function as banks were it not for the action of the Government and Oireachtas.
Speaking of the emerging jurisprudence on judicial review in general, he welcomed the statement of the Chief Justice in the Meadows case, an asylum case, that the Constitution, informed by the principles in EU law and the European Convention on Human Rights, rather than English common law, provided the bedrock for judicial review in Ireland.
Micheál P O’Higgins SC told the conference that judicial review was there to remedy injustice, correct errors of law, repair jurisdictional lapses and restore rationality. Discussing the role in judicial review in criminal cases, he said a number of recent cases had re-emphasised the necessity for policemen to give citizens basic information when invoking compulsory police powers.
These issues had arisen in a case where a garda had stopped and then searched a car, invoking his powers under the Misuse of Drugs Act, though he had no reasonable cause for suspecting that the driver was in possession of a controlled drug. In another case, a garda had asked for a man’s name and address without informing him it was an offence not to provide it. He also said that it was through judicial review that the approach of the courts to the prosecution of old cases of child sexual abuse changed and developed.