A Possible Environmental Court

1

A Possible Environmental Court

The Constitutional and Legal Parameters

Mr. Justice Frank Clarke*

1.Introduction

In the context of the conference organised by Dr. Ryall on the broad question of the possibility of establishing an environmental court it occurred to me that it might be useful to set out some general observations on what might actually be meant by the term “environmental court”.[1] There seem to me to be at least two reasons why this may be advantageous and might, indeed, prove a useful starting point for any discussion.

First, it is important to emphasise that there are many senses in which the term “environmental court” can be used. We are not talking of just one possibility.

Second, there are various issues which, doubtless, will form at least part of the discussion which may be said to impact on the desirability or otherwise of an environmental court. The degree of specialisation or specialist knowledge is one. Resources and their flexibility is a second. The location of hearings (whether central or local) is a third. The extent to which it might be possible for a branch of law to become isolated from more general developments is a yet further potential question.

The extent to which any or all of those questions might be considered to point in favour or against the establishment of an environmental court has the potential to be materially influenced by exactly what we mean by the term an environmental court. Factors that might, for example, be considered to be negative may be much less so if the court is configured in one way rather than another. It is against that background that I propose to offer some observations on the possibilities which are out there. I do not do so as a means of arguing for any particular model. I do so rather to provide some food for thought which, hopefully, may assist in the general debate. I turn first to a constitutional overview.

2.The Constitution

It is important to emphasise at the beginning that there may be some limitations on the type of “environmental court” which could be put in place without an amendment to the Constitution. It should, of course, be recalled that we have recently amended the Constitution (in the shape of the 33rd Amendment) for the purposes of altering the structure of the Superior Courts in the context of the introduction of the Court of Appeal. It is also worth recalling that, prior to the formal proposal to amend the Constitution in that way, the then Minister for Justice had also suggested the possibility of a further constitutional amendment designed to allow for the introduction of specialised family courts. Ultimately no such proposal was placed before the people. It is, however, worth noting that it was considered necessary to raise the possibility of a constitutional amendment in order to establish wholly separate family courts. There is little reason to believe that like considerations would not also apply in the context of any other stand alone specialist courts such as environmental courts.

A constitutional amendment cannot, of course, be ruled out. However, the timeframe within which such an amendment might be capable of being put into place and questions concerning whether any such amendment would secure the necessary majority among the public would necessarily come into play. If what is ultimately considered desirable is a form of entirely separate court with its own constitutional status, then a constitutional amendment may be the only way to achieve same. It is, however, important to recognise the limitations which would exist in the absence of a constitutional amendment as those limitations must necessarily play some role in assessing the desirability of any particular model of environmental court which may be proposed.

What follows is a consideration of what may be possible under the current constitutional regime. The first point of importance is to note that Art. 34.2.3.1 defines the High Court as a court “with full original jurisdiction” … on “all matters and questions whether of law or fact, civil or criminal”. One of the questions which has arisen is, therefore, as to whether the Oireachtas is competent to confer an exclusive first instance jurisdiction on a court other than the High Court. It was held in Tormey v. Ireland [1985] I.R. 283 that jurisdiction could be conferred on so-called courts of local and limited jurisdiction which was capable of being exercised, at least in certain instances, to the exclusion of the High Court. There have been some suggestions that the fact that the High Court has a constitutional status as a court with “full” original jurisdiction must imply that such legislation could not, however, legitimately exclude an oversight or review role for the High Court.

But, perhaps, of greater practical importance is the fact that the courts on which, in accordance with Tormey, exclusive jurisdiction canconstitutionally be conferred must be courts of so-called “local and limited” jurisdiction.

Such courts are permitted under Art. 35.3.4 of the Constitution. However, much of the case law in this area has concerned the extent to which the legislation governing those courts is to be interpreted in the light of the constitutional requirement that they be both local and limited in their jurisdiction. There has, in fact, never been an attempt to establish a separate standalone court which is said to be a court of local and limited jurisdiction but which was set up for the purposes of the exercise of a specialist role. The only two courts which have been established under the “local and limited” provision of the Constitution are the District Court and the Circuit Court which both exercise a wide range of jurisdictions although those jurisdictions may be limited in the sense that they are confined to claims of a particular scale or crimes of a particular type and also are local in the sense that each court can only exercise jurisdiction within a certain part of the country. Because there never has been an attempt to create a different type of court which might be said to qualify as a court of local and limited jurisdiction for the purposes of the Constitution, the jurisprudence in this area is necessarily limited. Insofar as any guidance can be obtained from the case law, it is to be found in litigation which is only tangentially relevant. It follows that it is not possible to define the permitted parameters of a court of local and limited jurisdiction with any great level of precision.

Against that constitutional background it is perhaps of some importance to discuss the question of whether it would be possible to create a standalone environmental court which was, as a matter of law, a separate legal entity, within the framework of the concept of a court of local and limited jurisdiction. So far as the “limited” requirement is concerned, it may be debateable as to whether one could say that a court which was limited to the exercise of certain specified functions within the environmental field met that requirement. It certainly is the case that, in certain areas, virtually all of the jurisdiction in the area concerned is conferred on one or other of the courts of local and limited jurisdiction. This is so even in some broad based areas of the law such as crime where either the District or the Circuit Court exercises virtually the entire first instance role. The number of crimes which must be tried in the High Court exercising its criminal jurisdiction (being the Central Criminal Court) are extremely limited and, in practice, confined to certain homicides and serious sexual offences together with a small number of very unusual offences such as genocide. In addition, there is, largely for EU reasons, a criminal jurisdiction in the competition field. However, it is fair to say that the limitations on the jurisdiction of the Circuit Court in the criminal field are quite limited.

There are other fields where a broad statutory jurisdiction is created which is conferred exclusively, at least at first instance, on one of the existing courts of local and limited jurisdiction. For example, the entire licensing jurisdiction of the courts is conferred on either the District or Circuit Court. The jurisdiction in respect of leasehold enfranchisement in the context of the Landlord and Tenants Acts is conferred exclusively on the Circuit Court. Many other examples could be given. There is, therefore, at least a case to be made that a jurisdiction may be said to be limited by reason of being confined to cases of a particular type even though all cases (without limitation) of that type are permitted to be tried in the relevant jurisdiction.

Finally, on this aspect of the question, it also needs to be recalled that, even if it were possible to create a court of limited jurisdiction by reason of limiting its competence to environmental matters, it seems likely that such a court would still be subject to the judicial review jurisdiction of the High Court and, thereafter, to appeals from the judicial review jurisdiction of the High Court to the Court of Appeal and possibly the Supreme Court. Such a system might prove unduly unwieldy.

Of at least equal importance, it must be acknowledged that questions would undoubtedly arise as to how a “local” aspect to the jurisdiction could be created. It would seem likely that it would be necessary to divide the country into at least some areas to comply with the “local” requirement. In that context questions might be asked as to the effective operation of an environmental court which was divided by region into local courts.

I note these problems not for the purposes of suggesting that it might not be possible to fashion legislation which created a standalone environmental court legally separate from all existing courts but to emphasise that the task is far from straightforward and that there may be restrictions on the way in which such a court could be structured which might, at least on one view, take away from some of the advantages which might be perceived as deriving from a specialist environmental court. That leads to the other range of measures which might be adopted which would be to create an environmental court within one of the existing courts.

3.A Court within a Court

I will turn shortly to the various practical methods which might be adopted for the purposes of creating a court within a court. However, a preliminary matter must be to note that the current jurisdiction of the courts in environmental matters is exercised by different courts. All are familiar with the important jurisdiction of the High Court to consider the validity of permissions given in a wide range of environmental situations for the purposes of determining, in judicial review proceedings, whether those permissions are valid. That judicial review function is conferred solely on the High Court subject to appeals to the Court of Appeal and, possibly, the Supreme Court, under the new regime in place since the coming into force of the 33rd Amendment. But is important to recall that the existing courts of local and limited jurisdiction also play a role in environmental cases. This arises, not least, in the context of criminal enforcement of breaches of planning law. One of the questions which would need to be addressed in the context of the creation of an environmental court within an existing court is as to how the current situation whereby different aspects of the environmental jurisdiction are exercised by different courts at first instance is to be addressed. Would it involve bringing all environmental cases into one of the existing courts so as to allow all such cases to be determined within that court in whatever manner of court within a court was decided appropriate? If not, how is it possible to create a single environmental court within the existing courts if the environmental jurisdiction of those existing courts is to remain, as it currently is,divided amongst those courts. Again, I raise this point not for the purposes of suggesting that it gives rise to insurmountable problems or that there is any one necessarily correct answer to those problems but rather to identify an issue which needs to be addressed in the context of debating what type of environmental court we are talking about.

There are, however, examples of courts within courts which we can identify to inform the debate.

The two best known examples are the Central Criminal Court and what is often colloquially referred to as the Commercial Court. The Central Criminal Court is not, in fact, a separate court but rather the High Court when exercising its criminal trial jurisdiction. Strictly speaking there is no such thing as the Commercial Court even though the term is widely used both in the media and by practitioners. What is referred to as the Commercial Court is, in fact, the Commercial List of the High Court as administered in accordance with the separate provisions of the Rules of the Superior Courts applicable to that List. In passing, it is also worth noting that many of the separate specialist “courts” which exist in England and Wales are, likewise, simply administrative sections of one of the divisions of the High Court whose business is conducted in accordance with specialist rules tailor made for the type of case likely to require to be determined in such specialist areas.

Some important features of these “courts within courts” need to be identified. First, because they are not a separate court but rather simply an administrative section within a court, there is no barrier to any judge of the court concerned sitting as a judge of the specialist section. Any judge of the High Court can, for example, be assigned to preside over criminal trials conducted in the Central Criminal Court or to hear cases in the so called Commercial Court. However, as a matter of practice, the President of the High Court tends to assign experienced judges in the relevant fields to sit in those courts although many such judges do also sit to hear other types of cases. Frequently, what has happened in practice is that a core group of judges are typically assigned to sit on a regular basis in the specialist section with other judges being available to supplement the section or to replace judges otherwise not available, as demands require. This flexibility has, I suggest, worked well in practice. It has allowed for the section to retain a significant level of experience in the respective fields of criminal trial and commercial litigation while at the same time affording the judges normally assigned to the respective sections the opportunity to experience sitting in other types of cases (often a valuable experience) and also allowing additional judges to sit when demand so requires.

While there is, doubtless, a spectrum of degrees of separation which might be identified in the context of a “court within a court” it can, perhaps, be suggested that there are three levels of separation which might be contemplated. I propose addressing each in turn:-

(a)Statutory Provision

It is possible to provide by statute for certain features of a separate section within a court. While there is no comprehensive example currently available, it is the case that certain statutes make provision for the way in which particular types of cases are to be dealt with. For example, the Arbitration Acts suggest that the review of arbitrations should be conducted, in the High Court, normally by a judge specifically assigned from time to time by the President of that court to hear such types of case. Provision is also made for the court attempting to give, within the exigencies of available resources, sufficient judicial time to allow for the court to function in an efficient manner. There is no reason in principle why certain features of any proposed environmental court might not be “hard wired” into legislation.

(b)Rules of Court

The more normal method is that adopted in respect of the Commercial List which has its own set of separate rules. Any such court or list would, of course, be somewhat dependent on the resources made available to it. One of the reasons why the Commercial Court has been perceived to have been successful is that cases almost invariably are heard on the day fixed for trial and trial dates are normally made available very soon after the case is ready for hearing. However, compliance with such a tight timeframe requires, amongst other things, that the President of the Court is willing to make a sufficient number of judges available to handle the business at hand. Successive Presidents of the High Court have been prepared to do this in respect of the Commercial List to date. However, that sometimes is at the cost of judges not being available for other cases. Consideration might need to be given to the best method of maximising the chance of adequate resources being made available. Furthermore, the difficult question of backup resources for judges is a matter that might need to be addressed.

(c)A Separate List

The least formal way in which a somewhat separated process for the hearing of environmental cases might be achieved would be by the creation of a separate list within the High Court. As a matter of purely administrative convenience, the business of the High Court is divided into various lists involving cases of a like type. For example, personal injury cases are heard within the Personal Injury List whereas cases involving equitable remedies are tried within the Chancery List. There are no separate rules applicable to these lists as such, but rather cases are heard in whatever manner is appropriate to the form of proceedings (plenary, summary or special summons, petitions or the like). However, judges typically are assigned to the relevant list for some time and, therefore, acquire (if they have not already done so through practice) a familiarity with the type of case involved. It would be a very simple matter to create a separate environmental list into which all cases of a particular environmental character could be placed.