As I understand it, this provides for judicial review by the High Court of a light railway order made by the Minister and applications for judicial review must be made within two months of the date on which the order was made. Is there any intention to give financial assistance to local groups or other individuals to take a judicial review if they feel it necessary? Does one have to be wealthy to go the courts by way of judicial review after the order is made?
SECTION 12.
Question proposed: "That section 12 stand part of the Bill."
There is no provision in the Bill for any financial assistance towards a judicial review.
Would the Minister of State consider an amendment on Report Stage to provide free legal aid of a defined type for individuals who want to fund a judicial review?
Free legal aid, as it is defined, is available if it is within its terms of reference. Under this Bill it is not envisaged to make provisions for financial aid of any kind for judicial review.
The Minister of State has voted down the consultative councils. She has not given us a commitment on funding for local groups to fund technical aspects of the public inquiry. Here we have another instrument available to the public but it is meaningless because they will not be able to afford it. Has she any solace to offer these communities?
That question has been answered. I do not see the point in the Minister of State having to reply to the same question twice.
The Minister of State seems to be here as a passive witness where she says there is no provision. We are forming legislation here. If the Minister has the political will to put it in, everything changes. It is not good enough to tell me there is no provision for it. Will she make provision for it?
No. The Deputy knows that the difference between public inquiries and the funding of an individual's or a group's access to them, and a review by the High Court is that a judge has the option of awarding costs. That is how our legal system operates and I do not see why it would not apply in this case.
While I accept that the legal position is that a judge may award costs, it is a major deterrent to anyone who does not have the financial resources available to them to go the courts in the first instance because equally the courts do not have to award costs. Most communities would be reluctant to take on that type of legal challenge. I would have thought this section would be covered in the Minister's response to the public inquiry as it is part of the same process that is presumably there to allow communities or individuals to challenge the whole procedure. If so, they should be in a position to avail of it otherwise it is unfair and it militates against people who are in poor circumstances. It only allows those who have financial strength and resources to go to the courts. I do not see any huge difference between that and the public inquiry phase.
I made reference on the last occasion to Local Agenda 21. A big reception launched Local Agenda 21 and announced that everybody would support it. However, page 7 of the Arran Quay Terrace submission states that the vision contained in Local Agenda 21 included the statement that all sections of the community are empowered to participate in decision making and improving communities through the integration of the environment, social equity and economic issues. The emphasis is on empowering all sections of the community to participate in decision making. Either we mean what we say when we talk about empowering communities or we do not.
What relevant section of this Bill or stage of the process empowers local communities? There is an onus on the Government to ensure those local communities can avail of such facilities, whether it be at the level of a public inquiry or an appeal for judicial review to the courts.
This phase deals with legality not with the merits of the light rail order or the system itself. As I already stated, there is one major difference between the public inquiry and this section, that is, that the option would be available to the judge to award costs where it is not specifically available to the inspector at a public inquiry. That is the major difference.
On a technical point, on section 12(4)(a), one can only go to the Supreme Court if the High Court certifies that ". . . its decision involves a point of law of exceptional public importance . . .". Is "exceptional public importance" the normal phraseology preceding referral to the Supreme Court?
This provision is taken from the planning Acts. It is to try to stop people using judicial review to totally wreck the planning. This reflects the provisions of the rules of the superior courts and the planning Acts.
We make laws here all the time but access to the law is often like access to the Hilton and the Ritz; it depends on what you can afford. Therefore, it is important that we have a process to assist people.
However, I want to look at this matter from the other side. The discussion of section 12 has shown that we do not want to give rise to a situation where there is any need to have access to the High Court or the Supreme Court. That emphasises the importance of having access to expertise so that all the communities involved will be on a par in terms of making a submission to the public inquiry. If we get it right at the stage of preparing the order, we need not worry about having a flawed order subsequently. The only way to get it right at that stage is to ensure that those who are concerned have direct involvement in consultation and the access to funding or the required technical expertise. They should be heard. We want local communities to have a fair crack of the whip.
Question put and agreed to.