Directions issued under s 14A of the National Monuments Act can be withdrawn or replaced. (Further discussion on possible constraints here)

This is how I finish this post; you’ll have to read the lot to see how I get there!

Discussion of the decision by outgoing Minister Dick Roche to (effectively) approve the M3 project through the national monument at Tara raises interesting questions of Ministerial power and the force of law. While leaving it to others to discuss the merits and demerits of the Tara and M3 issues, it’s a good time to walk through the legal issues concerned. This post is written with the proviso that I haven’t seen the order signed by Roche; it didn’t appear in today’s Iris Oifigiúil, nor is it on the Department of Environment’s website, and:

“The order was signed on Tuesday but it was decided not to issue a press release at that point because there was so much else going on,” a spokesman for the department said last night.

I don’t believe that for a second. Anyway. Former Minister Dick Roche is not saying that his successor, John Gormley, is prevented from changing his order; on the other hand, Gormley said (on de rea-djo) that “I can’t really do anything about my predecessor’s decisions”. The order/decision relates to the preservation of a national monument discovered during construction.

This has nothing to do with non-national roads being transferred from Environment to Transport (a separate issue that came out of the Cabinet reshuffle), nor does it relate to the advice given by the National Museum (there’s a statutory obligation to consult, but it’s not relevant to the question of overturning Roche’s order).

It has everything to do with the following.

Interpretation Act 2005

22.—(1) A power conferred by an enactment may be exercised from time to time as occasion requires.
(2) A power conferred by an enactment on the holder of an office as that holder shall be deemed to be conferred on, and may accordingly be exercised by, the holder for the time being of that office.
(3) A power conferred by an enactment to make a statutory instrument shall be read as including a power, exercisable in the like manner and subject to the like consent and conditions (if any), to repeal or amend a statutory instrument made under that power and (where required) to make another statutory instrument in place of the one so repealed.

And here’s the provision dealing with the decision itself. National Monuments (Amendment) Act 2004, s 5 inserted the following:

14A (4)(d) the Minister may, at his discretion, issue directions to the road authority concerned for the doing to such monument of one or more of the following matters:
(i) preserve it;
(ii) renovate or restore it;
(iii) excavate, dig, plough or otherwise disturb the ground within, around, or in proximity to it;
(iv) make a record of it;
(v) demolish or remove it wholly or in part or to disfigure, deface, alter, or in any manner injure or interfere with it,
and the road authority shall, except where section 14B(8)(a)(iii) of this Act applies, comply with such directions.

So the question remaining is whether the ‘directions’ stated in 14A are ‘statutory instruments’ as mentioned in the Act? The answer is provided in s 2 of the Interpretation Act:

“statutory instrument” means an order, regulation, rule, bye-law, warrant, licence, certificate, direction, notice, guideline or other like document made, issued, granted or otherwise created by or under an Act and references, in relation to a statutory instrument, to “made” or to “made under” include references to made, issued, granted or otherwise created by or under such instrument.

Break that down and the answer is very clear. The directions issued under s 14A of the National Monuments Act can be withdrawn or replaced.

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