Administrative Law Decisions Subject To Review PDF

Administrative Law Decisions Subject to Review 1  Decisions of Courts Judicially Reviewable: – decisions made by inferior courts Judicially non-reviewable – decisions of the High Court, Central Criminal Court, Court of Criminal Appeal or the...

Administrative Law Decisions Subject to Review 1  Decisions of Courts Judicially Reviewable: – decisions made by inferior courts Judicially non-reviewable – decisions of the High Court, Central Criminal Court, Court of Criminal Appeal or the Supreme Court – decisions of the High Court given on the hearing of an appeal from the Circuit Court‘ But not to: – the Special Criminal Court – Master of the High Court – A taxing master if a judge of the High Court sits on a tribunal, his status as a judge does not preclude an application for review 2  Final decisions of inferior courts Final decisions of the District Court and Circuit Court may be reviewed may be declined where its effect is to anticipate a ruling as to the admissibility of evidence—this is a matter for the trial judge The position is otherwise where a ruling has been made. 3  Proceedings in criminal matters: convictions liable to be quashed An irregularly obtained conviction A conviction in summary proceedings in the District Court where the offences are not minor offences A conviction on foot of a summary trial of an indictable offence where the applicant was not informed of his right to a jury trial 4  Proceedings in criminal matters: convictions liable to be quashed A conviction may be quashed where: – a District Judge tries an indictable offence summarily under the Criminal Justice Act 1951, but, – he is unaware of the facts of the offence, and – he has not therefore formed the opinion, as required by s2, that the offence is a minor one fit to be tried summarily 5  Proceedings in criminal matters: convictions liable to be quashed But if having formed the opinion that the offence is a minor one, the District Judge learns new relevant facts which alter his opinion, he may disclaim jurisdiction to deal with the matter summarily, and in these circumstances certiorari has been refused to quash the return to the Circuit Court for trial on indictment". 6  Proceedings in criminal matters: convictions liable to be quashed The decision of an inferior court regarding sentence in a criminal matter sentences without jurisdiction in the – District Court – Circuit Court 7  Civil matters irregularity in a civil matter may also give rise to a judicial review 8  State (Hughes) v Neylon 1982 A returned for trial to the next sitting of Monaghan Circuit Courthouse destroyed by fire Circuit Court President transferred business to Cavan A sought: – certiorari in respect of the order and – an order of prohibition preventing her trial in Cavan The application was refused Held: – Accused does not have a right to be tried by a jury drawn from a particular locality – the relevant powers of the president were not reviewable provided they were carried out in the bona fide exercise of his duty 9  Irish Times Ltd v Ireland 1998 Circuit Court judge imposed restrictions on reporting of a drugs trial SC: order to be quashed, as it: – curtailed public access to the administration of justice contrary to article 34.1 of the Constitution – infringed the guarantee of freedom of expression in article 40.6.1 order could be justified only where there was evidence of a real risk to a fair trial which could not be remedied by directions 10  Decisions of the Director of Public Prosecutions Director of Public Prosecutions was established by s 2 and s 3 of the Prosecution of Offences Act 1974 virtually all of the functions formerly exercised by the AG in relation to criminal matters were transferred to him The reviewability of a decision of the DPP whether or not to prosecute was established in State (McCormack) v Curran 1987 – mandamus might lie to compel the director to perform a statutory duty, certiorari did not lie in respect of his actions 11  Decisions of the Director of Public Prosecutions review lies on very limited grounds – only when the director has acted mala fide – has been influenced by an improper motive or policy – he has abdicated his functions Having made a decision, DPP is not subject to the requirement to furnish reasons – H v Director of Public Prosecutions 2 IR 589 12  Decisions of tribunals and other bodies Atkin LJ in R v Electricity Commissioners 1924 'Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs (certiorari and prohibition). 13  ‘duty to act judicially’ Judicial function – 3 elements 1. lis inter partes 2. Resolution must lie in with an individual who is required to decide accordance with law or principle--not by policy or discretion 3. He must be in a position to make a final determination which, subject to any right of appeal, is capable of being enforced. 14  ‘duty to act judicially’ quasi-judicial function one undertaken by a public body to which is ascribed features derived from the judicial model of decision- making Unlike a judicial function, a quasi- judicial function may entail an exercise of discretion 15  The inadequacy of the judicial or quasi-judicial function test Reviews have been granted in respect of decisions which are clearly not a binding or final ones 16  Decisions which are clearly not a binding or final State (Shannon Atlantic Fisheries Ltd) v Minister for Transport and Power 1976 inspector's report—submitted to the minister responsible for taking the decision whether or not to initiate a prosecution—quashed by an order of certiorari 17  Decisions which are clearly not a binding or final State (Hussey) v Irish Land Commission 1983 certiorari was granted to quash an order of lay commissioners made in the course of proceedings before them, refusing access to the applicant to certain documents. 18 Judicial Review Has Now Penetrated Far Into The Public Administration verdict at inquests deductions from an army pension the discharge of member of the defence forces the failure to maintain a courthouse in proper repair a disciplinary award made by a prison governor disqualification from receipt of unemployment assistance 19  Extent of judicial review Decisions at all levels of government have been subject to review – charges imposed by a local authority for the right to connect into its sewers – the inclusion of a mining ban in a local authority development plan – the decision of local authority to cancel the hiring of a hall to a political party 20 Ministerial Decisions Subject to Review decision to deport alien seeking refugee status dismissal of a civil servant serving in probationary capacity refusal to renew a licence for a sea-fishing boat the refusal of a certificate of naturalisation the rejection of an application for the product authorisation of a drug – Even a decision of the Government may, in an appropriate case, be open to review 21  Bodies that are not ‘governmental’ bodies subject to review have included: the Law Society; the Medical Council; the Adoption Boards; An Bord Pleanala; Employment Appeal Tribunal; Registrar of Deeds and Titles; Controller of Patents, Design and Trade Marks; Garda Representative Association Decisions of non-statutory bodies have been reviewed: Criminal Injuries Compensation Tribunal; the Legal Aid Board; Motor Insurers Bureau 22  public element test courts now tend to favour a broader test which, in general, makes all decisions containing a public element susceptible to review 23  public element test O'Higgins CJ in O'Brien v. Bord na Mona 1983 Persons carrying out acts which are administrative... Have an obligation to do so fairly, and in that sense, judicially They can and will be reviewed, restrained and corrected by the Courts if they act in a manner which is considered to be arbitrary, capricious, partial or manifestly unfair. 24 Beirne v Commissioner of An Garda Siochana 1993 A was a trainee garda Assignment terminated by the commissioner Alleged misconduct A claimed investigation did not follow fair procedures C claimed right to terminate derived from contract Held: right to terminate did derive from contract, but judicial review is available where there is a public aspect to the decision under review 25  Reasoning: Finlay CJ – public element was in the commissioner's statutory functions in admitting trainees and enrolling persons as members the Garda Siochana – Functions are 'of the most intense interest to the public at large'. Egan J – the conditions of service applicable to trainees were akin to regulations (i.e., they were of general application) – This was sufficient to bring the matter into the public domain 26 Beirne v Commissioner of An Garda Siochana 1993; Finlay C.J The principle which, in general, excludes from the ambit of judicial review decisions made in the realm of private law by persons or tribunals whose authority derives from contract is... confined to cases or instances where the duty being performed by the decision-making authority is manifestly a private duty and where his right to make it derives solely from contract or solely from consent or the agreement of the parties affected. Where the duty being carried out by a decision-making authority... is of a nature which might ordinarily be seen as coming within the public domain, that decision can only he excluded from the reach of the jurisdiction in judicial review if it can be shown that it solely and exclusively derived from an individual contract made in private law. 27  Browne v Dundalk UDC 1993 Sinn Fein booked a hall - annual conference councillors - resolution - purporting to cancel the booking – town clerk rescinded the contract Barr J decided that the issue was prima facie a contractual one, so outside the scope of review But—council's resolution was politically motivated Therefore, in the public domain Unlawful termination of the contract subject to review certiorari granted quashing the purported rescission 28 Geoghegan v. Institute of Chartered Accountants in Ireland A was facing disciplinary charges sought judicial review seeking to prohibit Institute from proceeding with these charges evidence demonstrated that: – the Institute had been created by charter and supplemented by private Act of the Oireachtas, and – the Institute's disciplinary code had been submitted to the government for its approval Murphy J.: decisions not amenable to judicial review. Supreme Court was divided on this question Denham J.: judicial review would lie She enumerated six separate factors which he thought appointed to this conclusion: 29  The Geoghegan Principles 1. This case relates to a major profession…with a special connection to the judicial organ of Government in the courts in areas such as receivership, liquidation, examinership, as well as having special auditing responsibilities 2. The original source of the powers of the Institute is the Charter: through that and legislation and the procedure to alter and amend the byelaws, the Institute has a nexus with two branches of the Government of the State 3. The functions of the Institute and its members come within the public domain of the State 4. The method by which the contractual relationship between the Institute and the applicant was created is an important factor as it was necessary for the individual to agree in a "form" contract to the disciplinary process to gain entrance to membership of the institute 5. The consequences of the domestic tribunal's decision may be very serious for a member 6. The proceedings before the Disciplinary Committee must be fair and in accordance with the principles of natural justice, it must act judicially. 30  Eogan v University College Dublin 1996 UCD academic staff traditionally allowed to stay on till 70 1987: practice was changed extensions in office no longer sanctioned Reasons: 1. To achieve a reduction in the age profile of academic staff at UCD 2. To make financial savings 31  Eogan v University College Dublin 1996 Governing Body of UCD decided not to continue Professor Eogan in office Applied for judicial review Governing Body’s decision was found to be subject to review sufficient public element to the decision Shanley J: four matters which may be taken into account: see over… 32  Eogan v University College Dublin 1996 1. whether the decision challenged has been made pursuant to a statute; 2. whether the decision maker by his decision is performing a duty relating to a matter of particular and immediate public concern and therefore falling within the public domain; 3. where the decision affects a contract of employment, whether that employment has any statutory protection so as to afford the employee any 'public rights' upon which he may rely; 4. whether the decision is being made by a decision maker whose powers, though not directly based on statute, depend on approval by the legislature or Government for their continued exercise 33  Shanley J in Eogan in determining whether a decision is reviewable, the issue is not just whether the power derives from a public source, but also whether the power is of a public nature This may enable the courts, in the future, to review decisions which although deriving from contract or other private source, impact in a significant way on the public or a section of the public. If, for example, a private body exercises a significant regulatory function, then its decisions may, on the basis that this function is a 'public' one, be open to review 34  Eogan v University College Dublin 1996 The college statutes permitted serving professors to continue in office up to the age of 70, providing that this was recommended by the Governing Body with the consent of the University Senate. Shanley J.: the statutes in question had been made pursuant to the Irish Universities Act 1908 and that by section 5(2), the statutes required to be laid before both houses of the Oireachtas In the circumstances, as he was satisfied that as the decision to appoint and not to continue in office "were decisions taken in substance pursuant to the statutory regime following from the 1908 Act", Shanley J. held that this decision could be challenged by means of judicial review. 35  Nature as Opposed to the Source of Power The issue: not just whether the power derives from a public source, but also whether the power is of a public nature The significance: the courts, in the future, may be able to review decisions which, although deriving from contract or other private source, impact in a significant way on the public or a section of the public 36 The exclusion of private decisions from review Private law issues are left to private law remedies if the decision- maker derives his jurisdiction solely from contract, relief will not be granted on an application for judicial review State (Colquhoun) v D'Arcy 1936 Rev Mr Colquhoun arraigned before the court of the General Synod of the Church of Ireland for alleged uncanonical practices the jurisdiction of this tribunal derived from contract and not statutory or common law powers order of prohibition was refused. 37  Murphy v Turf Club 1989 Club revoked Applicant’s trainer's licence Application made for an order of certiorari quashing the decision Barr J held: – the relationship between A and the Turf Club was contractual in nature – applicant's remedy was in contract—not judicial review 38  R v Panel on Take-overs and Mergers, ex p Datafin plc 1987 a court is not confined to a consideration of the source of the body's powers and duties… it may also look to the nature of those powers and duties… If the duties imposed on a body are public duties, and… the body exercises public law functions, then… its decisions may be subject to judicial review 39 The Turf Club, Barr J held… …is not such a body 'On the contrary,' he said its decision was that of a domestic tribunal exercising a regulatory function over the applicant He was an interested person who had voluntarily submitted to its jurisdiction. 40  Rajah v Royal College of Surgeons in Ireland 1994 App failed exams twice academic appeals board refused A permission to re- sit review was sought of that decision A argued: There was a sufficient public element in the decision because the college had been established by royal charter Keane J (as he then was); refused relief: 'the jurisdiction of the respondents is derived solely from (the applicant's) agreement, express or implied, to be bound by the regulations of the College, including the procedures under consideration in this case’ 41  Rafferty v Bus Éireann R made a decision to alter A’s terms of employment A challenged the decision by way of judicial review A claimed decision infringed section 14 of the Transport (Reorganisation of Coras Iompair Eireann) Act 1986 Kelly J. applied the factors identified by Denham J. in Geoghegan He concluded R’s decision could be challenged by way of judicial review 42  Rafferty v Bus Éireann 1997, per Kelly J The contracts of employment may originally have been private ones between employee and employer (albeit a public employer) They have been altered by statute and are given an express statutory protection which is not the case in an ordinary private contract Therefore the relationship between the parties here is not derived solely from a private law contract. 43  Bane v Garda Síochana Representative Association 1997 Disciplinary action had been taken against A by the Association A challenged the decision by way of judicial review Kelly J held that the decisions were amenable to judicial review He drew attention to the fact that a number of the Geoghegan criteria were also present in this case. 44 Should abuse by a private entity be subject to public law remedies? R v Jockey Club, ex p. Aga Khan 2 All ER, Hoffmann L.J. stated (at 875): “private power may affect the public interest and the livelihoods of many individuals. But that does not subject it to the rules of public law. If control is needed, it must be founded in the law of contract, the doctrine of restraint of trade… Articles 85 and 86 of the EEC Treaty and all other instruments available in law for curbing the excesses of private power.” 45 Quinn v The Honorable Society of King’s Inns, 2004 The Facts: A applied to R to sit entrance examinations A agreed to abide by the examination rules “the rules make no provision for appeals in respect of the entrance exam” A failed one of the five subjects Not permitted to pass the examination A sought a judicial review of that decision 46  Held by the Court in Quinn R’s decision not amenable to judicial review The rights of A were determined by contract The matter was a private one relating to the rights of a student with respect to R A was not entitled to invoke a public law remedy for a private law right Rajah v. The College of Surgeons 1 I.R. 384 was followed 47 Decisions outside the scope of review Private functions exercised by public bodies though a body may be a public one, review is precluded if the decision concerns a private function or raises a private law issue judicial review will not be available if the remedy lies in a private law action for breach of contract or tort if a minister or local authority breaks a contract, the contracting party's remedy is by way of ordinary action claiming damages/injunction. 48  Private functions exercised by public bodies But if the injured party claims, not that a contract has been broken, but that it has been unfairly awarded to some other person and not to him Should review be allowed of such a decision? Maigueside Communications Ltd v Independent Radio and Television Commission 1998 – A claimed R had wrongly failed to shortlist them in a competition for the award of a radio broadcasting contract – application was unsuccessful BUT—no point was taken that an application for review was inappropriate 49  Decisions of Dail Eireann review may be precluded by – insufficient public element – doctrine of the separation of powers Dudley v An Taoiseach 1994 App questioned the failure to hold a bye- election in accordance with the requirements of the Constitution Geoghegan J refused leave to apply for review – No enforceable order could be granted against Dail Eireann 50  Decisions of Dail Eireann O'Malley v An Ceann Comhairle A question was put down in the Dail by a TD for response by a minister A decision was made by the Ceann Comhairle to amend the question – The doctrine of the separation of powers precluded a review of that decision 51  Policy decisions of the executive some decisions made by the executive do not lend themselves to judicial review as they are concerned with matters of policy Decisions on issues of economic, social, security or foreign policy fall into this category Apart from separation of powers, such decisions do not lend themselves to review 3 reasons:… 52  Policy decisions of the 1. executive they are based on considerations of policy, as opposed to law; there are no recognised legal standards by which they can be tested in the courts 2. the adversarial system is arguably inappropriate for determining broader issues affecting many parties with different and perhaps competing interests 3. judges themselves have no training in, and little experience of, policy issues; such issues may therefore be better left to the political decision-maker who enjoys greater freedom of action 4. undesirable in principle that the courts should resolve essentially political questions. 53 Policy decisions of the executive Crotty v An Taoiseach 1987 Ratification of the Single European Act carried out by the Executive A declaration was granted by the Supreme Court declaring ratification unconstitutional – Title III of the Act committed the State to a common foreign policy with other members of the European Communities – This was held to be inconsistent with the freedom of action conferred on the Government by the Constitution in matters of foreign policy. 54  Policy decisions of the executive O'Donoghue v Minister for Health 1996 8 mth old child contracted Reye's syndrome Suffered residual quadriplegia/profound mental handicap Almost no educational facilities made available by State Application for judicial review made on child’s behalf HC granted a declaration that respondents had deprived him of his constitutional rights under article 42 – i.e. to a minimum education and free primary education Effect of ruling: Policy decisions may also be subject to review, at least indirectly, if their effect is to deny individual constitutional rights. 55  public functions exercised by private bodies judicial review is concerned with the improper exercise of power, not just governmental power Logically, relief should be available for 'public' functions exercised by private bodies Here, a 'public' function may mean a function: – which affects the public – which is subject to public law principles and requirements It appears illogical that functions and services, which are subject to judicial review and public law requirements, cease to be so because they are: – Wholly contracted out or – Become part-private, part-public entities 56  public functions exercised by private bodies why should a service which has been transferred to the private sector entail a reduction in the legal standards under which the provider of the service operates? certain bodies, technically in the private sector, exercise significant regulatory power over individuals in respect of which, in the event of abuse, there is no adequate private law remedy In these cases it may be appropriate that private bodies should, insofar as they exercise public functions, be subject to judicial review 57  Need for E.U. Inspiration? In Foster v British Gas the ECJ stated (in the context of direct effect) that: “The Court has held in a series of cases that unconditional and sufficiently precise provisions of a Directive could be relied on against organisations or bodies which were subject to the authority or control of the State or has special powers beyond those which result from the normal rules applicable to relations between individuals.” 58  Review of statutes and statutory instruments An application for review may be directed at a statute whose constitutionality is called into question review has been granted in respect of statutory instruments Harvey v Minister for Social Welfare 1990 SC declared invalid an article in the Social Welfare (Overlapping Benefits) (Amendment) Regulations 1979 Its effect was to deprive the applicant of a weekly blind pension which she had received until reaching pensionable age on the basis that it was inconsistent with an express provision of the Social Welfare Act 1979. 59  Review and the legislative process P in Finn v Attorney General 1983 sought a declaration that the Eighth Amendment of the Constitution Bill 1982 was repugnant to the Constitution SC: , save where article 26 applies, there is no jurisdiction to construe or review the constitutionality of a Bill, whatever its nature 60  Review and the legislative process Slattery v AnTaoiseach 1993, P sought to restrain the holding of the referendum on the ratification of the Treaty of Maastricht Hederman and Egan JJ: ‘the courts had no right to interfere in a legislative and constitutional process’ McCarthy J: P’s claim had 'no foundation whatever', however, 'It may be that circumstances could arise in which the judicial organ of government would properly intervene in this process...'. 61