The 2010 Supreme Court decision in Meadows v The Minister for Justice, Equality and Law Reform [2010] IESC 3 clarified the extent to which a decision of an administrative decision-maker might successfully be set aside by way of judicial review on the basis of a lack of proportionality, as opposed to the previous, higher-threshold, bases of utter unreasonableness or irrationality.

Meadows was, at the time, described by one commentator as an “…important watershed, which [could] be expected to lead to significant further developments in judicial review in the coming years…”. 

In a series of articles, spread over this e-zine and coming e-zines, we explain judicial review of discretionary decision-making on the basis of “unreasonableness”, trace the developments up to, and including the Meadows decision, and describe what has happened in its aftermath.  We hope that this will give you a context for judicial review and the doctrine of reasonableness, as well as guiding you in avoiding acts or omissions which might serve to render your decision-making vulnerable to judicial review on this basis.

The Context – Discretionary Power – Separation of Powers

As readers will be aware, the Oireachtas from time to time confers discretionary decision-making powers and functions on a variety of administrative or quasi-judicial decision-making bodies. These bodies range from those with no special technical or other special experience or expertise, to those with notable experience and expertise in particular areas.

The intention of the Oireachtas is that such bodies exercise the discretion conferred on them within the envisaged bounds. The intended breadth or narrowness of any discretionary decision-making power can be identified from the statutory provisions providing for it, but there will usually be some measure of discretion, and therefore, some envisaged range of decisions a body was intended to be free to make. Moreover, in the case of expert bodies, the intention of the Oireachtas is that the benefit of their particular expertise and experience be brought to bear on the particular decision-making concerned.

Therefore, it is important, from a constitutional, separation of powers, standpoint, to ensure that those bodies intended by the Oireachtas to exercise particular, substantive, decision-making functions, in fact end up doing so with the level of freedom and expert input intended. In that regard, it is important that the courts do not, in effect, usurp this function by engaging in overly intrusive review of decision-making, and, in particular, do not do so by engaging in merits-based review of substantive decision-making. In other words, in order to ensure respect for the constitutional requirement that the judiciary does not trespass into the legislature’s domain, it is important that the judiciary entertain legal proceedings in relation to discretionary decision-making only on the basis of a review of its legality, rather than of its substantive merits.

Further, it is important that, where the Oireachtas has conferred decision-making functions in relation to technical matters on a body with particular expertise, the courts give appropriate deference (or “respect”, to use a non-legal term) to the expertise of the body concerned. This means that the courts should exercise an appropriate level of reluctance in interfering with the decision-making concerned, as this defers to the law passed by the Oireachtas which intended that this be so.

On the other hand, it is important to bear in mind that the decisions made by administrative or quasi-judicial bodies often affect the rights and entitlements of persons (including, in some cases, fundamental, human or constitutional rights). It is important and constitutionally necessary, therefore, that such persons have recourse to an effective remedy to ensure that unlawful decisions affecting such rights and entitlements do not go unchecked.

The remedy available in Irish law for challenging the lawfulness of discretionary decision-making is the application for judicial review.

The Traditional Judicial Review Standard

In administrative law, a decision of an administrative body exercising discretionary decision-making functions can be set aside if the resulting decision is “unreasonable.” Here, ‘unreasonableness’ has a specialised meaning, which overlaps with the ordinary meaning of the word, but which goes beyond that meaning. The classic articulation of the doctrine of reasonableness was set out by the Court of Appeal in England in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 K.B. 223, in which Lord Greene M.R. stated that:

“[t]he court is entitled to investigate the action of the [public body concerned] with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the [public body concerned] have contravened the law by acting in excess of the powers which Parliament has confided in them.”

In this jurisdiction, these so-called “Wednesbury principles” have been incorporated and refined in tests set out in the respective Supreme Court decisions in The State (Keegan) v Stardust Compensation Tribunal [1986] I.R. 642 and O’Keeffe v An Bord Pleanala [1993] I.R. 39. In Ireland, therefore, the standard of review on the ground of unreasonableness is often referred to as the “Keegan/O’Keeffe” standard.

In Keegan, Henchy J. noted that there was a

“…necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties [which] requires, inter alia, that the decision-maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.” On that basis, he set out the test as follows:

“I would myself consider that the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. If it does, then the decision-maker should be held to have acted ultra vires…”

In O’Keeffe, Finlay C.J. restated the principles in Keegan, and also made it clear that a court could not interfere with a decision purely on the grounds that it was satisfied on the facts that it, itself, would have raised different inferences and conclusions, or that it was satisfied that the case against the decision made was stronger than the case for it. He further stated that the courts would intervene on the basis of irrationality only in limited and rare circumstances, and that, in order for a decision to be overturned on the ground of irrationality, the Court would have to be satisfied that the decision-making authority had before it no relevant material which would support its decision.

The Meadows Gloss

Given the apparently restrictive, high-threshold, nature of the Keegan and O’Keeffe standards of unreasonableness and irrationality, questions arose as to whether these were inappropriately high and unduly difficult to attain successfully in particular cases, leaving deserving litigants without an effective remedy, and administrative bodies’ decision-making unduly unchecked.

In particular, questions arose as to whether these standards were so high as to exclude or unduly impair the ability of a litigant to obtain an effective remedy where a possible breach of rights protected or recognised by the Constitution or the European Convention on Human Rights was involved.  In that regard, the comments of Henchy J. in Keegan to the effect that there was a “…necessarily implied constitutional limitation of jurisdiction in all decision-making which affects rights or duties…” seemed tantalising.  They seemed to signpost that, where rights were affected, the effect of the Constitution had to be to require the judicial review standard to be flexible enough to ensure an accessibly-effective remedy to ensure appropriate vindication of such rights.  While various court decisions considered this over the years, the Supreme Court in Meadows finally and authoritatively dealt with the question in 2010, and we will turn our attention to that judgment on the next occasion.