Devlin v. Minister for Arts, Culture and the Gaeltacht [1998] IESC 43; [1999] 1 IR 47 (12th November, 1998)

JUDGMENT OF MR JUSTICE FRANCIS D MURPHY DELIVERED THE 12TH DAY OF NOVEMBER 1998 [Nem Diss.] 1. This is an appeal by the Appellant/Applicant from the order and judgment of Mrs Justice McGuinness by which she refused an application for judicial review in respect of the refusal by the Minister for Arts Culture and the Gaeltacht (the Minister) to grant the renewal of certain licences under the Wildlife Act 1976 (Birds of Prey) Regulations 1984, SI 8 of 1984, and EEC Regulation Number 3 626/82. (The regulation implementing in the community the Convention on International Trade in Endangered Species of Wild Fauna and Flora.) 2. The Wildlife Act 1976 (No. 39) was enacted with the wholly commendable purpose that being:- "... For the conservation of wildlife (including game) and for that purpose to protect certain wild creatures and flora....” 3. Section 11(1) of the 1976 Act identifies the role of the Minister in the following terms:- “It shall be a function of the Minister to secure the conservation of wildlife.” 4. The “Minister” was defined in the 1976 Act as being “The Minister for Lands”. However, the Department of Lands became the Department of Fisheries pursuant to Statutory Instrument SI No. 29 of 1977. The name of that department was changed on the 14th July 1978 to the Department of Fisheries and Forestry. By a further change made on the 19th February 1986 it became the Department of Tourism, Fisheries and Forestry. By SI No. 82 of 1987 the name was refined to “The Department of the Marine”. By SI No. 96 of 1987 the functions vested in the Minister for the Marine under the Wildlife Act 1976 were transferred to the Minister for Energy. Subsequently by SI No. 156 of 1987 the powers of the Minister for Energy under the 1976 Act were transferred to the Minister for Finance. Later still those functions were transferred from the Minister for Finance to the Minister for Arts, Culture and the Gaeltacht by virtue of SI No. 443 of 1994. It is by that circuitous route that the Respondent became the Minister for the purposes of the 1976 Act and the Respondent in these proceedings. 5. Wildlife itself is defined in the 1976 Act in such a way as to include “wild birds” and falcons and hawks are “protected wild birds” within the meaning and for the purposes of s.22 thereof. The Minister is permitted by s . of the Act to make regulations (among other things):- (d) providing that a person shall not, save under and in accordance with a licence granted in that behalf by the Minister:- (i) engage in falconry, (ii) have in his possession or under his control any eagle, hawk or falcon or the eggs or young of any eagle, hawk or falcon.” 6. The power to grant licences for the purpose of that section is expressly conferred on the Minister. 7. The Wildlife Act 1976 (Birds of Prey) Regulations 1984 (SI No 8 of 1984) (the 1984 Regulations) expressly provide (among other things) as follows:- “4(1) A person shall not, save under and in accordance with the licence granted in that behalf by the Minister, either engage in falconry or have in his possession or under his control any eagle, hawk or falcon or the young or eggs of any eagle, hawk or falcon. (2) Where: (a) The Minister revokes a licence granted by him for the purposes of this regulation, or (b) Such a licence expires, the Minister may require the person to whom the licence was granted to dispose of in such manner as the Minister shall specify in writing any eagle, hawk or falcon or the young or eggs of any eagle, hawk or falcon of which the person was in possession pursuant to such licence immediately before its revocation or expiration.” 8. Finally, in relation to the 1976 Act, it may be noted that s.69(6) thereof expressly provides that:- “Any person who contravenes a condition attached to a licence granted by the Minister under this Act shall be guilty of an offence.” 9. From the affidavit sworn by the Appellant/Applicant it appears that he commenced the business of falconry in Ireland in the year 1991 having previously been involved in that business in the United Kingdom for upwards of eighteen years. It does appear in the affidavit of Mr Peter Brazel, a member of the National Parks and Wildlife Service (NPWS), that the Appellant/Applicant did apply for a licence entitling him to hold birds of prey and for a falconry licence entitling him to use birds of prey for hunting in each of the years 1992, 1993 and 1994. In April 1994 he was granted a falconry licence (BP/F 88/94) and a possession licence (BP/P 88/94). The schedule to those licences listed in particular four Peregrine falcons. Those licences expired in January 1995. Prior to renewal in that month controversy had arisen between the Applicant and the Minister’s officers with regard to the reconciliation of the birds of prey listed in his application for the licence and those birds of prey which he had previously imported. 10. Eventually the Applicant/Appellant was on the 19th October 1995 granted a renewed Falconry Licence and a renewed Possession Licence each of which was subject to express terms which included the following:- -4 - “(2) A report in writing giving particulars of the liberation, escape, death, sale or breeding of any of the birds to which this licence applies must be made to the Minister for Arts, Culture and the Gaeltacht within 14 days of the liberation, escape, death, sale or breeding of the birds or on a request being made in that behalf by the Minister. (3) No birds of prey to which this licence applies may be disposed of by the licensee without the prior written approval of the Minister for Arts, Culture and the Gaeltacht. (4) The Minister for Arts, Culture and the Gaeltacht may carry out, if he considers it appropriate, on any eagle, hawk or falcon or the young or eggs of any eagle, hawk or falcon which is referred to in the schedule to this licence, DNA analysis or other scientific testing by way of blood sampling or other suitable methods to be determined by the Minister.” 11. Those licences were expressed to expire, on the 31st January 1996. In a letter of the 26th October 1995 the Applicant through his solicitor contested all three of the quoted conditions. He complained that the provision requiring the Applicant to obtain permission from the Minister for the disposal of the birds was a breach “of our client’s proprietary rights” and specifically that Mr Devlin was “not prepared to allow the Minister to carry out DNA tests on any of his birds at any time he considers appropriate” . Mr Devlin did indicate he was prepared to have the birds tested by feather samples within a specified period. Mr Devlin made it clear that he was not prepared to co-operate fully with the Minister in the implementation of those regulations. 12. Mr Brazel swore that he had been informed by Mr Joe Gatins, Deputy Regional Manager of the NPWS that he had attended by arrangement at the premises of the Applicant on the 2nd February 1996 to apply the DNA test to the two then remaining falcons when he was told by Mr Devlin that the two birds had been lost. Mr Devlin’s solicitors had previously on the 26th October 1995 advised the Department that the two other falcons were “at hack” which apparently resulted in their liberation. 13. By letter dated the 1st March 1996 the Director of the NPWS, Mr Canny, reviewed the circumstances surrounding the application of the 14th January 1996 for the renewal of the licences, the correspondence which had taken place in relation thereto and the problems with regard to the death, loss and disappearance of birds. He then went on to say:- “Having considered your application for renewal of your licences under the Wildlife Act, 1976 (Birds of Prey) Regulations, 1984 we must inform you that your application has been refused for the following reasons:- (1) You failed to present Birds of Prey (i.e. four Peregrine Falcons) for DNA testing as requested and required by the National Parks and Wildlife Service. (2) Your stated refusal to assist and co-operate in the proposed DNA testing of Birds of Prey held by you under the licence. We have been informed that you have a previous conviction in the UK in the name of Michael Boon for offences in relation to birds. Should you wish to appeal this decision, you may do so in writing to the undersigned on or before the 15th March, 1996. You will be advised regarding disposal of the birds currently in your possession on the outcome of any appeal lodged by you, or in the absence of an appeal, in writing after the 15th March next. In the meantime, birds should not be disposed of without prior written approval of this Service.” 14. In a reply dated the 7th March 1996 the solicitors on behalf of the Applicant/Appellant commented upon the matters raised by Mr Canny in his letter and in particular dealt with the third reason put forward for refusing to renew Mr Devlin’s licence, namely, that he was convicted of an offence in England relating to birds, in the following terms:- “You may be interested to note, that the offence for which Mr Devlin was convicted in England, had since been removed from the Statute Books and is no longer an offence. Furthermore, the said conviction, would not act as a bar to Mr Devlin obtaining Falconry and Possession Licences in England.” 15. The letter went on to express a wish to appeal Mr Canny’s refusal to renew the licences and requesting an opportunity to make oral submissions on the appeal. In his reply dated the 2nd April 1996 Mr Canny explained that there was no provision for an oral hearing but invited additional evidence or documentation on the grounds of appeal. That offer was refused and in a letter of 18th April 1996 the solicitors on behalf of the Applicant/Appellant explained 7. that their client’s grounds of appeal had been comprehensively set out in their letter of 7th March. 16. On the 23rd May 1996 Mr Canny informed the solicitors on behalf of the Applicant/Appellant that he had been directed by the Minister to advise Mr Devlin that his appeal had been rejected and the decision to refuse his application for licences under the Wildlife Act 1976 (Birds of Prey) Regulations 1984 had been confirmed. 17. In those circumstances the Applicant/Appellant sought and obtained on the 8th July 1996 liberty to apply by way of an application for judicial review for an order of certiorari in respect of the refusal by the Minister on the 1st March 1996 to grant renewal of the falconry and possession licences and the rejection of the Applicant’s appeal on the 23rd May 1996. Judicial review in the form of mandamus was also sought in respect of the CITES certificates. That leave was granted “on the grounds set forth at paragraph (e)” in the Statement of Grounds dated the 3rd day of July 1996. Paragraph (e) having set out the relief sought and the identity of the parties to the proceedings went down to identify the grounds in the following terms:- “(V) The purported decision of the first Respondent is unreasonable and/or irrational and is thereby ultra vires. The first named Respondent adopted a fixed and inflexible policy and did not take into account all the circumstances as detailed by the Applicant to the first Respondent, its servants or agents and failed to consider the reasonable interest of the Applicant and of his livelihood and the particular circumstances pertaining to the Falconry business. (VI) Mandamus to consider the Applicant ‘s Application in accordance with the law. The Applicant fulfils the requirements for the grant of the licences pursuant to the provisions of the Wildlife Act, 1976 (Birds of Prey) Regulations 1984 and for the issue of the certificate (CITES certificates) under Regulation EEC No. 3 626/82 and the first named Respondent has failed, refused and neglected to state any valid reason for the purported refusal of the CITES certificates. (VII) Having regard to the nature of the matters in respect of which relief is sought by way of an Order of Certiorari and Mandamus and nature of the Respondents against whom relief may be granted and all circumstances of the case it would be just and convenient for this Honourable Court to grant the declaratory reliefs sought.” 18. It would appear from the foregoing that the only grounds relied on in relation to the decision of the Minister to refuse a licence or licences under the Wildlife Act 1976 (as distinct from the refusal to issue a CITES certificate and the nature of the relief claimed by the Applicant) is as follows:- 1. That the purported decision of the Minister was unreasonable or irrational. 2. That the Minister adopted a fixed and inflexible policy. 3. That the Minister did not take into account all the circumstances as detailed by the Applicant to the Minister. 4 The Minister failed to consider the reasonable interest of the Applicant and of his livelihood. 5 The Minister failed to consider the circumstances pertaining to the Falconry business. 19. In a comprehensive judgment delivered on the 30th October 1997 Mrs Justice McGuinness analysed the relevant legislation and the regulations made thereunder. She reviewed protracted correspondence between the Applicant and the Officers of the NPWS in relation to the granting and withholding of the appropriate licences and more particularly the manner in which the Applicant carried on his falconry business. In addition the learned trial Judge reviewed many of the decided cases dealing with judicial review. In his Notice of Appeal the Applicant has challenged as being erroneous in law certain of the conclusions reached by the trial Judge. However, the grounds of appeal to this Court from the judgment of the learned trial Judge must not be confused with the grounds on which the Applicant was given leave to apply for judicial review. The Statement of Grounds relied upon by the Applicant was never amended nor does it appear that any application in that behalf was ever made. 20. The first two reasons invoked by Mr Canny in his letter of March 1st 1996 for refusing to grant licences under the 1984 Regulations were based on the actual refusal of the Applicant to co-operate with the NPWS in the DNA testing of birds of prey held by the Applicant and his stated refusal to provide such co-operation. As it was an express condition of the expiring licence that the Minister might, if he considered it appropriate, carry out DNA analysis or other scientific testing on the birds referred to in that licence it is difficult to conceive of any interpretation of the words “unreasonable” or “irrational” which could justify those terms being applied to the attitude being adopted by the Minister or his officials. It could hardly be said that a decision to refuse a licence to a person who would not co-operate with the Minister in his efforts to identify and conserve protected wild birds “flies in the face of reason”. Again the contention that the Minister did not have before him all of the relevant material is unstateable. The 1996 application was accompanied or preceded by a voluminous correspondence in which the Applicant took the opportunity of expressing himself forcefully in relation to the conditions imposed on licences granted pursuant to the Wildlife Act 1976 and the requirements of the Minister and his officials in relation to such licences. A surprising feature of the application received on the 18th January 1996 is that it identifies four Peregrine falcons as being in the possession of the Applicant when it would appear that two of those falcons had been lost and reported as lost in October 1995 and the remaining two were lost not later than the 2nd February 1996. 21. Whilst it is not a ground upon which liberty was given to apply for judicial review the Applicant did apparently contend before Mrs Justice McGuinness that there was an impropriety in the procedure by which the licence was refused in that Mr Canny advised the Applicant in his letter of 1st March 1996 that he was entitled to appeal the decision -apparently a decision of the NPWS - refusing the renewal of the licences. It does not appear that there is any provision for the granting or renewal of a licence by the NPWS nor is there appeal from any such decision. The granting or withholding of a licence is power exclusively within the authority of the Minister under s.41 of the 1976 Act and there is no statutory provision for an appeal from that decision. Perhaps the complex devolution from the Minister for Lands to the Minister for Arts, Culture and the Gaeltacht (taken in conjunction with the Ministers and Secretaries (Amendment) (No.2) Act 1977 ) may have given rise to some misunderstanding. Whatever the explanation for the designation of the application to the Minister as “an appeal” the error, if that is what it was, did afford the Applicant the opportunity of providing the further information contained in his letter of the 7th March 1996. In that letter the Applicant dealt with the third reason advanced by Mr Canny for purporting to refuse the application. It was explained as follows:- ‘The third reason put forward by you for refusing to renew Mr Devlin‘s licences, namely, that lie was convicted of an offence in England relating to birds, is with respect, misguided and irrelevant. You may be interested to note, that the offence for which Mr Devlin was convicted in England, has since been removed from the Statute Books and is no longer an offence. Furthermore, the said conviction, would not act as a bar to Mr Devlin obtaining Falconry and Possession Licences in England.” 22. It would appear, therefore, that all of the relevant material was before the Minister when he made his decision to refuse the application and there is no evidence to suggest that the Minister failed to consider all of the material placed before him. 23. Even if it could have been argued that the NPWS or the Minister was in error in purporting to refuse to grant a licence on grounds which included the fact that the Applicant had been convicted previously in the UK for offences in relation to birds, I am satisfied that the other reasons set out in Mr Canny’s letter of the 1st March 1996 would have provided ample justification for the refusal. Reliance on an additional, if inappropriate reason, would not necessarily invalidate the decision. This problem was dealt with by McCarthy J in International Fishing Vessels Ltd v. The Minister for the Marine (No 2) [1991] 2 IR 93 (at page 103) in the following terms:- "The Minister has set out a number of grounds, some of them subdivided, any one of which would clearly have justified the Minister in refusing to grant the applications. I am satisfied that if the Minister intends to take into consideration a variety of different factors in making his decision, he must notify the person or body seeking the renewal of a sea fishing licence of each of those matters; if he fails to notify the applicant of a matter which, on its own, causes him to make his decision, then his decision must be quashed. If however, there are valid reasons for his decision based upon matters of which he had notified the applicants and given them ample opportunity to make representations, the fact that there are other reasons of which he has not given them notice, does not, in my view invalidate his decisions.” 24. The contention that the Minister had adopted “a fixed and inflexible policy” appears to relate to a statement contained in a letter from Mr Canny to the Applicant dated the 10th January 1996 in which the writer stated that:- “You might note that a condition relating to DNA testing is being included in all new licences.” 25. The extent to which a Minister exercising a statutory discretion is permitted to adopt and implement a policy in relation to the exercise of such discretion was dealt with by Mr Justice Kelly in Mishra v. The Minister for Justice [1996] 1 IR 189 (at page 205) in the following terms:- “In my view, there is nothing in law which forbids the Minister upon whom the discretionary power under s.15 is conferred to guide the implementation of that discretion by means of a policy or set of rules. However, care must be taken to ensure that the application of this policy or rules does not disable the Minister from exercising his discretion in individual cases. In other words, the use of a policy or a set of fixed rules must not fetter the discretion which is conferred by the Act . Neither, in my view, must the application of those rules produce a result which is fundamentally at variance with the evidence placed before the Minister by an applicant.” 26. In my view that principle could be applied in the present case. It is entirely permissible for the Minister to identify conditions which might be applied with advantage to most and perhaps all new licences relating to possession or falconry granted pursuant to the 1976 Act. Conditions designed to assist in the conservation of the species would seem appropriate and it is difficult to see, notwithstanding the complaints made by the Applicant, how there could be any reasonable objection to them. 27. No doubt Mr Devlin feels very strongly about the matter. If not he would hardly have pursued a claim for what was a temporary licence through the High Court and to this Court. I could admire his dedication and determination but I believe his virtues in those respects are wholly misconceived. The Minister has been entrusted with the task of securing the conservation of wildlife and for that purpose the 1976 Act expressly prohibits certain activities otherwise that in accordance with a licence granted by the Minster pursuant to that Statute. It is for the Minister to determine whether or not a licence should be granted. The only function of the Courts is to ensure that the procedures adopted by the Minister in reaching his determination accord with natural and constitutional justice. In fulfilling that function it is proper to recall the judgment of Lavery J in O‘Mahony v. Arklow Urban District Council [1965] IR 710 at 735 where, having dealt with the basic facts concerning the purported removal of the town clerk of the Arklow Urban District Council the learned Judge went on to say:- “The issues now raised are alleged defects of form and not of substance. Most certainly there must be rules regulating the conduct of human affairs, be they public or private. Most certainly these rules must be observed and the Court must be vigilant to require observance. This does not mean that in the administration of justice the Court should parse and construe rules of procedure in a narrow and unreal way, looking for some flaw in procedure to invalidate a transaction where the requirements of justice and the substance of procedure have been observed.” 28. As to the valuable remedy of judicial review I would refer also to the observation of the President of this Court ( Mr Justice O’Flaherty) in Riordan v. An Tánaiste [1998] 1 ILRM 494 when he said (at page 500):- ".. Judicial review is an essential feature of our legal landscape. However, just as a constitution is not designed to partake of the prolixity of a legal code, so too judicial review should not be regarded as a legal panacea designed to remedy every conceivable grievance, including that of the appellant in this case.” 29. Judicial review is a valuable legal process. Over a number of years it has been invoked to correct some misunderstandings and occasional abuses in the exercise of statutory powers. The manner in which those powers must be exercised has been stated and restated by the Courts in many cases a number of which were referred to in the judgment of the learned trial Judge. The requirement that statutory powers (among others), even those expressed to be absolute, must be exercised in accordance with the requirements of natural and constitutional justice is well known and generally understood. Likewise it must be widely appreciated that the only function of the Courts in relation to the exercise of such powers is to review the procedures in which they are exercised. In the absence of express statutory provision the Courts do not have an appellate role by which they can reverse or review the actual decision taken. In these circumstances it may be expected that the need to invoke the remedy of judicial review in relation to public officials will diminish significantly. Certainly it would be regrettable if this procedure, which achieved so much good, was to be invoked unnecessarily or in such a way as to delay or defeat the proper exercise of administrative powers. Public officials may not be permitted to exercise their powers improperly: neither should they be impeded from exercising them properly. 30. Finally, I must advert to the fact that the Applicant has discontinued his falconry business. He has left Ireland and now resides in France. The Court has been informed that he may wish to return to Ireland and resume his falconry business here but there is no immediate prospect of his so doing and no bar to his applying for appropriate licences in that event. In those circumstances I cannot conceive that the Court would in any event in the exercise of the discretion vested in it grant the relief sought by the Applicant even if he had made out a case for such relief which, in my opinion, he has not. 31. The question of a certificate under the EEC Regulation does not arise in these circumstances. 32. I would dismiss the appeal. © 1998 Irish Supreme Court BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII