James Geoghegan (Dublin Bay South, Fine Gael)
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I thank the Minister for being in attendance. He will be aware the greater Dublin drainage project was granted planning permission in July and a judicial review was subsequently initiated. This is an absolutely essential project for the existing half a million homes in this country and tens of thousands more homes that will not be built unless this project is continued. I do not need to tell the Minister, as a Dublin Bay South TD, about the impact the absence of the drainage project is having on the Ringsend wastewater treatment plant. On Wednesday, I raised with the Taoiseach the question as to what more can the Government do about judicial reviews, specifically on this project. The Taoiseach said in his reply that he has asked the Attorney General and the Minister to look at the option of bespoke legislation to drive that project, the Dublin drainage project, through because the common good is overwhelming here. That is one indication of what the Government intends to do about this specific project.

A second area the Government has made clear it intends to act on is to commence the relevant provisions of the planning Act legislation. It is not within the Minister's remit but as part of that there is a requirement that he be consulted in respect of that. At what level will we fix costs in respect of these types of Aarhus Convention environmental proceedings? What we do not want to have is some sort of cost incentive to bring forward these proceedings as distinct from the merits of the proceedings. Where are we with those regulations and the commencements of those provisions and at what level will we fix those costs?

A week ago, the Minister indicated he would bring a memo to the Government in respect of the civil reform Bill, which deals more generally with judicial review. Will the Minister clarify, in respect of that Bill, if it will impact planning at all because I am not entirely clear in regard to that Bill? Some of the recommendations contained in the civil report by President Kelly are already in the planning Act related to planning decisions. It is really about the commencement of the provisions of the planning Act to fix the costs of these types of actions, none of which will impact on these live proceedings regarding the drainage project that are before the courts, but other major critical infrastructure projects are being built in this country and this city, the Shannon to Dublin pipeline being one of them. That is another absolutely essential piece of infrastructure to ensure we see the delivery of housing.

It is essential we take every step possible not to restrict people's legal rights but to ensure the common good prevails. The public wants us to build this infrastructure. We cannot have a system where a single individual or a group of individuals can frustrate over half a million people. That is not proportionate and not within the intent of the Aarhus Convention.

I have a fourth idea for how the Government and State could respond to judicial reviews, namely, being put at risk of costs. Is it completely inconceivable that a party that brings this type of action would not have to face some risk of costs? That is a submission the TFI made to President Kelly's cost report review. Is that something the Government might also consider?

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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I thank Deputy Geoghegan for raising this extremely important matter. He started his contribution by referring to the greater Dublin drainage project, which is an absolutely critical project not just for the people in the constituencies we share but indeed for the whole Dublin area. Deputy Geoghegan's specific concern is what can be done to ensure unmeritorious judicial review applications brought before the courts can be prevented or short-circuited in some way to ensure the common good and public interest in such a project is represented and protected by the State. I agree with the sentiments he is expressing.

What I have indicated to my Department, and the authority I received from Government on 15 July last, was that I was given permission to prepare the general scheme of a civil reform Bill. I am pleased to say that preparatory work is proceeding expeditiously and I hope to be in a position at some stage, probably next month, to publish the heads of the Bill and go to the Government to seek permission to draft, on a priority basis, legislation that would be entitled a civil reform Bill.

As Deputy Geoghegan is aware, President Kelly produced a very fine report back in December 2020. I am not prepared to let that report sit on the shelves. It needs to be given statutory effect. As Deputy Geoghegan will be aware, many aspects of it relate more generally to the area of civil litigation, such as discovery and trying to give greater powers to the precedents. They are issues I hope to see included in the Bill.

Also within the Bill, however, will be a part dealing with judicial review. As has been indicated by the Deputy, one of the biggest challenges facing the State is the delivery of critical infrastructure and affordable housing for our people. The greater Dublin drainage project is an example of that critical infrastructure. Despite the Government's significant efforts and what has to be recognised as an unprecedented allocation of resources to deliver large-scale infrastructure projects that would improve the living standards of people in our community, we find that many of these projects, which are both urgent and necessary, find themselves delayed because of judicial review applications, many of them in circumstances where there is an internal statutory appeal. The effect of it is that very many of the projects are delayed for significant periods because of judicial review applications. As the Deputy will appreciate, and as I appreciate, people are entitled to bring challenges before our courts but what we should seek to do, and what this civil reform legislation will seek to do in respect of judicial review, is try to rebalance the different sides in that argument. We need to ensure there is legislation in place that recognises and places a statutory obligation on a court to take into account the public interest and common good being served by a major infrastructural project.

That is something that needs specific statutory recognition. There should also be some statutory recognition of the fact that a person who is challenging, by way of a judicial review, a project needs to have some direct impact or interest in the project itself. They must be directly affected by it as opposed to just an individual coming along, taking a challenge on the basis that they have a general interest in it. That is why I have decided to ensure that this general scheme is published. Deputy Geoghegan mentioned a couple of other matters in respect of the planning Act and the Aarhus rules on costs and I have had discussions in my Department about that. As I am sure he will appreciate, that is a matter predominantly for the Department of housing but when it comes to judicial review we will introduce new legislation that will complement and sit alongside the provisions within the planning Act.

James Geoghegan (Dublin Bay South, Fine Gael)
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I thank the Minister for the reply. It seems to me that we have put the laws in place in the planning Act in relation to trying to reduce the number of judicial reviews. We have not yet commenced the relevant provision as it relates to fixed costs. The Minister has a statutory role in relation to that, although I acknowledge it is the Minister for housing who has to discuss it with him. I wonder when we are going to make an actual decision on this and send a very clear signal of what the State's approach is in getting critical infrastructure over the line. I am still not very clear as to whether the Minister's civil reform Bill will have any impact at all as it relates to planning. It seems to me that the civil reform Bill, how it has been briefed and what is in Mr. Justice Peter Kelly's report, talks about a more onerous leave stage when it comes to judicial review whereas in the planning Act - and those provisions have been commenced - we have abolished a leave stage. I want to ensure that the public are clear as to what the Government is going to do here. I was heartened by what the Taoiseach said on Wednesday in terms of looking at bespoke legislation on the drainage project. He is going to seek the advice of the Attorney General. However, will we be able to do that with long-standing precedent of these Houses legislating as it relates to cases that are before the courts? The public wants this to happen. They want us to do something. We just simply have to do something. The Minister's Bill is very important legislation that will take some time to go through these Houses but ultimately we need to see radical action here because we know what is going to happen. The Taoiseach asked people politely not to judicially review the drainage project but they have done it. We know what will happen with the Shannon to Dublin water project. That, and other critical infrastructure, is going to be judicially reviewed. People are going to suffer. Young people are not going to get access to houses because of these laws and we have to do something radical to respond.

Jim O'Callaghan (Dublin Bay South, Fianna Fail)
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First, on the bespoke legislation in respect of the drainage project, obviously that would be legislation coming from a different Department to the Department of justice. I have not given consideration to it. I hear what the Taoiseach had to say on it but that is a matter that would obviously have to come from the Minister for housing in respect of bespoke legislation. As the Deputy will no doubt appreciate however, introducing a piece of legislation to, in effect, determine the outcome of litigation that is put before the courts, can be subject to frailty. We need to be careful about that. I would like to see the planning Acts commenced as soon as possible. A huge amount of time in the previous Oireachtas was devoted to those Acts. We got them through the Houses of the Oireachtas and they should be commenced promptly. I will certainly speak to my colleague, the Minister, Deputy Browne, in respect of when it is intended to commence them.

Regarding the judicial review legislation that I intend to bring forward, it may not be enacted in time to deal with the Dublin drainage project; although sometimes when you look at the length of time these infrastructural projects take it may very well have an opportunity to deal with it. However, that legislation will put on a statutory basis the type of orders that can be made in judicial review applications. It is all very archaic in terms of orders of certiorari and mandamus. We need to set out what a court can do. We need to set out what the court has to take into consideration in its granting of any judicial review. We need to specify that a court cannot go down the route of engaging with a judicial review if there is an internal statutory appeal process available to an applicant under a statutory scheme. At present, with the greatest of respect to the other branch of Government, the Judiciary, we need to specify more precisely when the courts can intervene in judicial review. At present it is far too broadly available. I want to see a system whereby judicial review challenges are expedited and there are very specific grounds upon which it can be challenged, namely, the decision-making process was impacted and the basis for it will be set out in legislation.