Court of Appeal: High Court does not have jurisdiction to designate national monuments

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Stating that such designations were a matter for the executive (or perhaps the legislature), Mr Justice Gerard Hogan (pictured) emphasised that such issues were a matter of purely policy and held that the High Court did not have a free standing jurisdiction to declare a particular monument to be a national monument

Background

In September 2015, the Minister for Arts, Heritage and the Gaeltacht refused to designate the entire Moore Street battlefield site as a national monument.

In the High Court in March 2016, Colm Moore, a member of Cumann Gaolta 1916/The 1916 Relatives Association, brought judicial review proceedings in his own name qua citizen of Ireland and as a representative of that Association.

Justice Max Barrett granted a declaration that certain streets and street alignments in the Moore Street, Moore Lane and O’Rahilly Parade area in Dublin 1, along with Nos. 10, 18, 20, 21, and part of No. 13 Moore Street constituted national monuments for the purposes of s. 2 of the 1930 Act.

Court of Appeal

The essential question in the Court of Appeal was whether the High Court enjoyed a jurisdiction to declare that certain buildings or sites amount to national monuments for the purposes of the National Monuments Act 1930.

Explaining that Moore Street resonated “with anyone with even a passing interest of Irish history”, Justice Gerard Hogan said that Justice Barrett’s judgment contained “as deeply a moving, eloquent and comprehensive account of the end of the Rebellion as has ever been written”.

Both the Minister and Dublin Central Limited Partnership appealed the decision.

While questioning the procedural steps employed by Mr Moore in the proceedings, Justice Hogan said it was “not necessary to decide this important case on this point of procedure”

National Monuments Act 1930

Justice Hogan explained that structure of the National Monuments Act 1930 was not the easiest to follow, and stated that it was “quite unclear on the fundamental question of who should determine what monuments are to be national monuments or whether, indeed, some formal designation of such monuments as national monuments for the purposes of the 1930 Act is actually necessary”.

In this regard, Justice Hogan said it was clear that Justice Barrett was significantly influenced by the Wood Quay decision.

The fundamental difficulty presented by the language of s. 2 of the National Monuments Act 1930 was that the Act applies only if the preservation of the Moore Street battlefield site as a national monument is “a matter of national importance.”

Justice Hogan stated that the exercise of any free standing jurisdiction of this kind would require the courts to make a determination on a purely political question, unaided by any defined or established legal standards.

The matter would be regarded as executive (or, possibly legislative) in character due to the fact that the designation of a monument as a national monument ultimately calls for political and administrative judgment (aided by historians, archaeologists, conservationists, engineers etc.)

Justice Hogan stated that he found himself “coerced to the conclusion” that determining a matter of national importance pursuant to s. 2 of the National Monuments Act 1930 was “one of pure policy in respect of which there are no established or otherwise manageable legal standards which a court can properly apply”.

“Under the constitutional system of separation of powers a policy issue of this kind can only be determined in the first instance by an organ of government which is directly elected and is thus answerable to the People”.

As such, s. 2 of the National Monuments Act 1930 could not be constitutionally interpreted as to vesting the courts with this function of declaring a particular monument to be a national monument where this would entail the courts making purely policy assessments without reference to established legal criteria.

Justice Hogan held that the High Court did not have a free standing jurisdiction to declare a particular monument to be a national monument under the National Monuments Act 1930. Justice Hogan added that the Wood Quay case, on which Justice Barrett relied, “must be regarded as having been wrongly decided”.

Allowing the appeal, Justice Hogan stated that he would deal with the planning issues in a separate judgment. Herein, Justice Hogan found that Justice Barrett was in error in granting an order restraining the proposed development, as the proposed works “did not amount to a breach of the Planning Acts”.