Just over a year ago, in June 2015, I wrote — at some length — about the right to navigate the Shannon through Castleconnell, Co Limerick. A member of the staff of the ESB fisheries department told me
The legislation empowering ESB to regulate activity on the Shannon is contained in the Shannon Fisheries Act 1935 – Section 9.1 (D).
That accorded with my own untutored understanding: according to Section 9 (1) (d) the Board is empowered to
(d) terminate, restrict, or otherwise interfere with, either permanently or temporarily and either compulsorily or by agreement, any easement, way-leave, water-right, fishing right, or other right over or in respect of any land or water[.]
However, I responded to the ESB pointing out that the existence of a power does not prove that the power has been exercised, much less that it has been exercised validly. I asked for information on (inter alia)
[…] what strategic decisions the Board has made on this subject, or what decision-making powers it has conferred on its fisheries staff […]
whether the Board has actually decided to “terminate, restrict, or otherwise interfere with, either permanently or temporarily and either compulsorily or by agreement, any easement, way- leave, water-right, fishing right, or other right over or in respect of any land or water”
if it has so decided, what the details of the decision are: details both of its making and of its application [.]
The Act gave the ESB a power, but the power has to be exercised properly and there must be a record of the making of the decision. I have had no reply to my queries, and my working hypothesis is therefore that the ESB has not validly terminated, restricted or interfered with the right to navigate the Shannon at Castleconnell. If I receive evidence to the contrary, I will of course change my view.
One part of the problem is that the Act gives the power to the Board and, in my view, employees of the Board cannot of themselves decide to exercise that power unless the Board has validly delegated the power to them. The fisheries department cannot close the navigation unless the Board explicitly gave them the power to do so.
A case at the Court of Appeal, reported in the Irish Times today [11 July 2016: the article may disappear behind a paywall at some stage], seems to support that view [although I am not a lawyer: please consult your own legal advisers]. The relevant paragraph is
The board was entitled to delegate the power to issue wayleave notices to its chief executive but was not entitled to “sub-delegate” to the chief executive power to authorise such other persons as he deemed appropriate to issue wayleave notices, Mr Justice Brian Cregan held. Any such persons had to be directly authorised by the board.
I suggest that the same may apply to fisheries and navigation. If the navigation at Castleconnell was validly terminated, restricted or interfered with, either the Board took that decision itself or it explicitly delegated the power to do so to the fisheries department (or someone else). In either case, there should be a Board minute on the matter and it should be possible for the fisheries department to cite that minute.
Perhaps the Irish times report is a little misleading: I suspect the Judge held that the Board was entitled to delegate the power to its chief executive to issue wayleave notices and not to delegate power to issue wayleave notices to its chief executive?
In any event you raise a very interesting question and ESB’s reticence may reflect a delving through its records and archives and even a reference to its legal department.
Keep up the good work.
Very good points. An interesting judgement also in the context of not allowing delegation outside of the CEO. Thanks for all your work.
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