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Dr Rachael Walsh: There is legal room for CPO of the National Maternity Hospital site by the government

The Assistant Professor at the School of Law in Trinity College says the law does establish a legal route for compulsory purchase.

Dr Rachael Walsh

THE CURRENT DEBATE over the ownership of the new National Maternity Hospital has put the spotlight on our legal procedures for compulsorily acquiring land.

Opposition politicians have favoured acquisition, while government ministers have expressed concerns about feasibility and potential delays.

Here, I outline the most likely statutory route for a potential compulsory purchase order, as well as issues that might prompt legal challenges.

The commentary on this issue has rightly noted that the compulsory purchase process can be slow and that the preference of public bodies is generally to negotiate sales on a voluntary basis.

The legal question

This is particularly the case in Ireland, as we do not have a single act specifying when and how the State can compulsorily acquire property. As part of an ongoing review, the Law Reform Commission in 2017 identified over 70 distinct compulsory purchase powers and systems. The likely power of choice in respect of the National Maternity Hospital site is in the Health Act 1947.

Under the procedure set out in that Act, the HSE could make a compulsory acquisition order directly, which would then have to be publicised through both newspaper notice and direct written notices to affected property right holders.

Once that is done, application would be made to the Minister for Health for confirmation of the order. The Minister can hold an inquiry into the order, and is required to do so where objection(s) to the order do not relate solely to compensation. The Act does not prescribe the procedure to be followed in the inquiry.

Following an inquiry, the Minister can refuse the order, approve it, or approve it with modifications. In the event of confirmation, the order must be publicised again.

There then follows a third procedural ‘layer’. Application for annulment of an order can be made to the High Court within three weeks of publication of notice of the confirmed order.

The High Court will consider whether the procedure set out in the Act has been complied with in a way that causes prejudice to an individual and whether the scope of the powers conferred by the Act were exceeded, or an order issued that was not authorised by the Act.

It’s complicated

The Act goes on to state: ‘save as is otherwise provided by this section, a compulsory acquisition order shall not be capable of being annulled, quashed, or otherwise questioned (whether before or after confirmation by the Minister) by any court.’

This provision purports to prevent any other legal challenges to a confirmed compulsory acquisition order.

The grounds specified in the Act – procedural compliance and authority for the acquisition decision – are apparently the only grounds on which an order can be disputed. Other issues that often arise, like whether consideration was given to alternative sites, are excluded.

However, the legislation would not be likely to be interpreted as excluding a constitutional challenge to an order – or if it was, the exclusionary provision itself might be challenged.

In what ways might the Act, or an order issued pursuant to the Act, be challenged by reference to the Constitution?

First, fair procedures are crucial in respect of compulsory acquisition, as is independent decision-making. On this front, there are two problems with the process set out in the 1947 Act. The acquiring body itself determines the need for a compulsory acquisition in the first instance, with review by the Minister for Health.

In a decision in 2015, the Supreme Court said that it was clearly preferable that there would be an independent determination of the need for a compulsory acquisition. Both the HSE and the Minister for Health would lack independence. In addition, there is no clear procedure for the ministerial inquiry.

Second, the Constitution sets out a bespoke test for assessing the legitimacy of ‘diverting’ property from religious denominations or educational institutions, which has not been explained or developed through past judicial decisions. Article 44.2.6˚ provides that such diversion must be ‘for necessary works of public utility and on payment of compensation’.

Challenges may not hold

Since the meaning of the phrase ‘public utility’ has not been defined, it could be argued in a legal challenge to be narrower than the ‘common good’ or the ‘public interest’, which are the constitutional principles that determine the legitimacy of standard compulsory acquisitions. For example, it might be argued that ‘utility’ is confined to classic public infrastructure projects, like roads and electricity.

However, the courts have tended to defer to the judgment of the legislature and of administrators concerning the purposes and aims that can justify compulsory acquisitions, suggesting that the courts might prefer an expansive interpretation of ‘public utility’.

In short, we have an applicable statutory process for compulsory acquisition that is designed to rule out lengthy legal disputes: it requires a legal challenge to be brought within a very short time frame and on very narrow grounds, and it excludes other challenges.

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However, the constitutional questions that might be raised by a compulsory acquisition remain in bounds. Those questions might generate delays, but they are questions that the State would have strong responses to, meaning they should not rule out compulsory purchase as a response to this problem.

Dr Rachael Walsh is Assistant Professor at the School of Law, Trinity College Dublin and author of Property Rights and Social Justice (Cambridge University Press, 2021).

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Dr Rachael Walsh

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