Every year the High Court deals with hundreds of applications seeking to challenge the decisions of public bodies. A total of 835 applications were made in 2014; 973 in 2013; and 998 in 2012. If you do not follow best practice when making a decision that affects the legal rights of others, you risk a legal challenge to your decision and becoming one of these statistics.
Our new series of Good DecisionMaking Guides highlight what is best practice in decision-making and offer simple and practical tips to reduce the risk of challenge to your decisions.
In this first Guide, we consider why it is important for decision-makers in public bodies to exercise care when making decisions; the common pitfalls in decision-making; and how a decision of a public body might be challenged.
WHY IS IT IMPORTANT FOR PUBLIC BODIES TO EXERCISE CARE WHEN MAKING DECISIONS?
Good decision-making is an essential principle of good administration. If public bodies do not follow best practice when making decisions, this can:
- result in the decision being challenged, which is costly and time-consuming for the decision-making body;
- be distressing for the person affected by the decision, particularly if he or she is put to the trouble and expense of challenging the decision;
- cause reputational damage to the decision-making body and undermine public confidence in government as a whole; and
- affect the decision-making body’s ability to implement policy.
WHAT ARE THE COMMON PITFALLS IN DECISIONMAKING?
Common pitfalls in decision-making include:
- failing to follow legislative requirements or relevant policies and procedures;
- failing to properly assess relevant information;
- making factual errors;
- failing to apply fair procedures; and
- failing to give reasons.
WHAT IS ADMINISTRATIVE LAW?
In order to best understnad the ways in which decisions can be challenged, we need to examine the differences between administrative (public) and private law.
Administrative or public law is the body of law that governs public bodies in the exercise of their public functions.
However, public bodies are not governed exclusively by public law; private law applies to public bodies in certain situations.
If a Government department enters into a contract with a stationery supplier, the private law of contract governs the relationship between the parties.
If the department puts the contract for the supply of stationery out to tender, any decision on the award of the contract must comply with administrative or public law.
Judicial review is a safeguard that applies specifically to administrative or public law.
WHAT IS JUDICIAL REVIEW?
Judicial review is a procedure that allows the High Court to review the manner in which a public body exercising a public law function made a decision. In judicial review proceedings, the Court is mainly concerned with the manner in which the body made the decision, rather than with the substance or the merits of the decision. In this way, judicial review differs from an appeal.
The Court will look at whether the decision in question was one which the body had power to make and whether the body complied with the law and the principles of fair procedures when making the decision.
WHAT TYPES OF BODY MAY BE SUBJECT TO JUDICIAL REVIEW?
Bodies exercising functions of a public law nature may be subject to judicial review.
This includes what might be regarded as typical public bodies (e.g. Government departments), but also private bodies discharging public functions (e.g. regulatory bodies such as The Medical Council).
Examples of bodies that may be judicially reviewed include:
- Government ministers or departments;
- Statutory bodies;
- Local authorities;
- Statutory tribunals;
- Compensation tribunals;
- Non-commercial semi-state bodies;
- Non-commercial semi-state bodies;
- Licensing bodies;
- Regulatory bodies;
- The District and Circuit Courts (but not the Superior Courts);
- The DPP; and
- Some sports associations.
WHAT TYPES OF DECISION CAN BE JUDICIALLY REVIEWED?
In general, the High Court will only entertain a judicial review application where:
- there is a public law dimension; and
- there is a decision, act or determination which affects some legally enforceable right.
PUBLIC LAW DIMENSION
To figure out if there is a public dimension to a decision, look at:
- the nature of the decision-maker;
- the source of the decision-making power; and
- the nature of the particular decision.
The public law dimension may not always be immediately obvious.
Bus Éireann operated the school transport scheme. It entered into contracts with contractors who then hired bus drivers. The contractors were required to ensure that all drivers were vetted with An Garda Síochána and to notify Bus Éireann if any driver had a criminal conviction.
Bus Éireann stopped a driver from driving a school bus when it discovered that he had two criminal convictions. The driver sought to challenge the decision. Bus Éireann argued that its decision could not be judicially reviewed as it was a contractual matter.
High Court: The decision could be judicially reviewed. The Court noted that (i) the national school system consists of the public provision of primary education; (ii) transport to and from school had been an entitlement for at least two generations; (iii) the school transport scheme was publicly funded; and (iv) the functions of Bus Éireann were of statutory origin. (Mac Uaid v Bus Éireann)
DECISION WILL AFFECT SOME LEGALLY ENFORCEABLE RIGHT
There must be a decision, act or determination which affects some legally enforceable right, or a right so close to a legally enforceable right that it is a probable next step that some legal right will be infringed. Decisions may have adverse implications for certain persons, but that does not mean that they affect their legal rights.
A dispute between Ryanair and a trade union over pay and conditions for ground handling agents resulted in the setting up of an inquiry under the Industrial Relations Act 1990. Two independent persons were appointed to conduct the inquiry and to prepare a report for the minister. The inquiry engaged an expert body to carry out a comparative study of pay and conditions. The report of the inquiry made a number of findings of fact.
Ryanair sought to challenge the report by way of judicial review.
High Court: Ryanair could not challenge the report by way of judicial review. The report was a mere fact finding report. Therefore there was no ‘decision’ capable of being judicially reviewed and Ryanair’s legal rights had not been affected by the report. The Court said that the argument that publication of the report might lead to the imposition of some adverse requirement on Ryanair was “entirely speculative” and could not be described as a “probable consequence or next step”. (Ryanair v Flynn)
- the grant or refusal of planning permission;
- the grant or refusal of a licence;
- the grant or refusal of asylum;
- the refusal to hear a complaint;
- decisions on the conduct of investigations; and
- decisions taken on foot of policy documents, guidance documents or government circulars.
WHAT CAN HAPPEN IF A DECISION OF A PUBLIC BODY IS SUCCESSFULLY JUDICIALLY REVIEWED?
The High Court can make one or more of the following orders:
- Certiorari – an order cancelling the decision. The High Court will not re-make the decision; it will send the matter back to the decision-maker so that it can make the decision properly. This is the most common type of order made in judicial review proceedings.
- Mandamus – an order directing the decision-maker to do something, e.g. to reconsider a decision.
- Prohibition – an order prohibiting the decision-maker from doing something, e.g. making a decision that it does not have power to make.
- Declaration – an order declaring what the law is.
- Injunction – an order prohibiting the decision-maker from doing something or requiring them to do something.
- Damages – financial compensation (only awarded in certain circumstances).
WHAT ARE THE GENERAL PRINCIPLES OF GOOD DECISION-MAKING?
If you are making a decision that might affect the legal rights of others, you must:
- have the power to make the decision.
- have regard to any relevant factors and exclude any irrelevant considerations.
- make a rational decision.
- comply with fair procedures and any other legal or procedural requirements.
In Guide 2, we will look at the first three of these principles.
Fair procedures will be discussed in Guide 3.