Irish courts have reconciled the competing considerations of vindicating the rights of individuals affected by governmental and administrative decisions but also respecting the powers and functions conferred to these bodies at the same time. This has been made possible by setting a number of principles of natural justice which form the basis of judicial review. A decision would only be reviewed if it is proved that any of these principles is proved to have been breached. Such are known as the grounds for judicial review. All judicial review cases in Ireland are heard and conducted by the High Court. The grounds of judicial review that could be raised in Irish courts to have the purported cancellation set aside as invalid are based on the doctrine of administrative unreasonableness and have to be proven.
In assessing reasonableness of administrative decisions for cases which involve the breach of fundamental rights, Irish courts take into consideration the proportionality of the decision. Coming from the test laid down in the O’Keeffe case, Denham J stated that it was important to expand the definition of unreasonableness of a decision. It is also inherent that proportionality should be assessed.
Curial difference is an Irish style that was applied in the case of EMI Records (Ireland) Ltd. v. The Data Protection Commissioner, [2012] IEHC 264 which makes the application of judicial review restricted to specified occasions. Karole Ciddihy Justice stated that, “Only in defined circumstances is judicial review of a decision-making process available. To extend judicial review outside the proper boundaries of that remedy is to introduce uncertainty into the interaction of judicial and administrative power…” Therefore, curial difference is a way in which the court warn itself from interference. When a legislative body sets up a specialized tribunal and equips it with broad powers plus a contractual clause, it informs the courts of its intention of making decisions on its own. That the courts should not be involved because the tribunal has a better understanding of their situation. In essence, courts are bound and cannot get involved and review decisions where legislatures have shown an intention to make their own decisions and no constitutional question arises
The Doctrine of Administrative Unreasonableness
The principle of curial deference can only be applied to the extent that it is consistent with the set standards of reasonableness. The doctrine of administrative unreasonableness is the basis under which Irish courts will get involved in a decision review process.
The Traditional Threshold
Decisions made by administrative bodes can be reviewed and set aside if they achieve the unreasonableness standard. The classic articulation of what amounts to unreasonableness was set out in the Associated Provincial Pictures Houses Ltd. case where it was stated by Lord Greene M.R. 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.”In other words, while determining whether the tribunal, quasi-judicial organ or any other administrative body has acted reasonably, the courts will consider whether such bodies have fulfilled the four corners of what is required of them.
The Meadows v Minister for Justice, Equality and Law Reform Analysis and the Doctrine of Administrative Unreasonableness
The Meadows case became a landmark case in the question of administrative unreasonableness as it expounded on the scope and application of the principle of administrative unreasonableness. It came in place to negotiate the higher-threshold, bases of utter unreasonableness or irrationality required to sort out administrative issues brought for reviw. The case involved a Nigerian-based citizen who sought asylum in Ireland. The grounds for her move was that she was susceptible to Female Genital Mutilation (FGM) in Nigeria. A recommendation by the Refugee Applications Commissioner stated that she should not be declared as a refugee and upon appeal to the Refugee Appeals Tribunal, the idea was upheld. She then sought leave to remain on humanitarian grounds from the minister, stating that FGM was an international human right violation of the freedom from torture and returning her back to her country would be a state violation of the obligations stated in Article 3 of the ECHR Act 2003 and on international standard; section 5 of the Refugee Act, 1996. However, the minister did not address the applicant’s appeal or respond to her claim that her enjoyment of fundamental human rights was at risk. The leave was brought before the High Court for judicial review but was denied on the basis that it did not attain the standard of unreasonableness set aside for reviewing administrative decisions.
The standard here is that an administrative decision may only be set aside for unreasonableness if it is fundamentally at variance with reason and common sense. The case was appealed to the Supreme Court where it was decided by a majority of 3-2. The Supreme Court found the decision made by the High Court to be unacceptably opaque and vague. The decision to not avail reasons for ruling by the minister was deemed unreasonable. The leave sought by the appellant to seek for judicial review was granted and the matter was remitted to the High Court by the Supreme Court.
The doctrine of curial difference is quite limited in Ireland as it is superseded by administrative unreasonableness. There is an emphasis on procedural fairness, jurisdictional error and error of law which if breached, they make it a ground for administrative unreasonableness. These bodies are accorded the discretion to handle cases brought before them. However, the misuse of these decisions can be the basis of judicial unreasonableness. When determining unreasonableness, the question is whether an administrative body has failed to consider or take into account any matter that it ought to take into account prior to reaching the decision. Unreasonableness in this case is evident in two dimensions. First is unreasonableness with regard to exercise of discretionary powers and secondly is unreasonableness on the considerations made prior to reaching the decision.
One way in which Irish courts ascertain that an act amounts to administrative unreasonableness is by looking at the way in which the decision makers exercises their discretionary powers. Decisions which are founded on an improper exercise of discretionary powers well be attached and be subjected to review. Unreasonable exercise of discretionary powers can take a number of forms namely: ultra vires action, improportianility and irrationality in the decision.
Ultra vires action. Whenever an administrative body acts beyond its powers either procedurally or substantively, then the ruling is founded on unreasonable grounds. When looking at substantial ultra vires, Irish courts will look at whether the administrative organ was acting within the powers duly entrusted on it or was outside its jurisdictional limit. As for procedural ultra vires, the court looks at the procedural irregularities pertinent to the decision for review.
Proportionality. Most of the European nations including Ireland enforce the principle of proportionality in ascertaining reasonability of administrative decisions. A severe penalty from a mere offence can be successfully challenged on the basis of proportionality. This concept encompasses a number of issues which include: the failure of a legislative objective to sufficiently justify limiting a basic right, the measures designed to meet the legislative objective are rationally connected to it and that the approach utilized in impairing the right or freedom in question are more than necessary. In essence, a complete lack of proportion between the consequences of a decision and the conduct upon which it operates may manifest unreasonableness.
Irrationality in the decision. Irrationality in the confines of judicial review means conduct beyond the range of responses reasonably open to an administrative body. The objective test in determining whether a particular act or decision is irrational is considering whether a public body has done something which a reasonable body with the same function and confronted with the same circumstances could not do.
The decision reached in this case is based on irrelevancies and ignorance of relevant facts. In the case of R v Secretary of State for Social Services, ex parte Wellcome Foundation Ltd, it was stated that it is a reviewable error either to take account of irrelevant considerations or to ignore relevant ones, provided that if the relevant matter has been considered or the irrelevant one is ignored, a different decision or rule might (but not necessarily would) have been made. If the decision-maker relies on irrelevant facts or laws to reach an administrative decision, hen such a decision can be challenged successfully for being a subject of administrative unreasonableness.
Wednesbury Unreasonableness
Wednesbury case is an English case which underpins the doctrine of unreasonableness and has since been adopted by the Irish courts as well. In the case, youngsters were denied access to a movie theatre on a Sunday so as to preserve their morality. Lord Greene MR warned himself against interfering with the decision stating that “there is always a considerable overlap between many of the grounds of judicial review that fall within the rubric of unreasonableness.” In other words, the judge admits that drawing a contrast between what is reasonable and what is not is subject to relativity and might not be that easy. However, his Lordship also stated that “it is true to say that, if a decision on a competent matter is so unreasonable that no reasonable authority could ever have come to it, then the courts can interfere. That, is quite right; but to prove a case of that kind would require something overwhelming.” In essence, while it would be difficult to prove prima facie unreasonableness, there are some instances of absurdity that need to be reviewed.
Wednesbury unreasonableness created a number of basis for unreasonableness which are also evident in Irish courts. These basis include the following: first is when the ruling is devoid of plausible justification in that it does not have any reasonable justification to be upheld. Secondly, when the decision-maker has not been able to take into account the departmental policy or representation. Another instance is when a decision maker’s fact finding is based on an erroneous finding and the fact goes ahead to form an essential part of the case. Unreasonableness can also be seen where the effect of a ruling is deemed to be unnecessarily harsh. Another case is when the umpire fails to produce genuine, proper or realistic consideration to the issue in question. One can also successfully prove unreasonableness in the application of discretion by proving inconsistencies with other decisions. Finally, discrimination with no rational basis can also be a cause of unreasonableness. All the above-mentioned cases are instances under which the Irish courts can review cases brought before them on the basis of administrative unreasonableness.
How Irish Courts Differ From American Courts in Judicial Review
As opposed to Irish Courts which are bound by the doctrine of curial deference, the courts in US and most common law jurisdictions have no limitations. The case of Marbury V Madison is a landmark case in American constitutional law. It was the Supreme Court case that brought about the principle of judicial review which accords American courts the power to squash legislations and executive orders that are in contravention with the U.S. Constitution. Marbury argued that original jurisdiction over the issue was given to the Supreme Court by the Judiciary Act of 1789 as provided in Section 13. The provision gives the court original jurisdiction ad appellate jurisdiction, where the Supreme Court reviews and can quash or upheld the decision of the lower court. Marbury’s case had been filed directly with the court, prompting it to hear and decide based on its original jurisdiction. While agreeing with this provision of the statute, Chief Justice John Marshall also noted that this contravened Article III of the U.S. Constitution. The provision essentially limited the court’s jurisdiction on such an issue to appellate. Thus Judiciary Act of 1789 was deemed unconstitutional for increasing the court’s original jurisdiction. As a result, Justice Marshall opined that it was imperative that the judiciary takes up the role of determining the constitutionality of legislations. He stated that “It is emphatically the province and duty of the judicial department to say what the law is.” His statements would then mean that the government’s powers would be limited and such limits would be meaningless unless subjected to judicial review and enforcement.
Despite the massive appreciation accorded to the principle of judicial review, there has been notable discontentment and open criticism about its application in the US just like it is in Ireland. Some claim that the assertion that the U.S. Supreme Court has constitutional authority over the other branches of the U.S. government makes it look like the judiciary is a supreme arm compared to others. Others have also stated that Marshall’s arguments for the Court’s authority are mere “assertions of authority”, rather than substantial reasons logically laid out to support his position. In the case of Eakin V Raub, Justice John Bannister in his dissent, suggested that judicial review should be limited for the likelihood that it allows judges to impose their moral and political views on the community.
Conclusion
The very concept of administrative unreasonableness is to form a basis under which decision-making bodies do not misuse their discretion to make decisions. Decision makers in tribunals and other administrative organs enjoy the prospects of the curial deference principles. However, it their decision is perceived to be one of administrative unreasonableness, then it is bound to be reviewed by the High Court of Ireland. The basis of unreasonableness is the misuse or misapplication of discretion by the decision-maker or reliance on irrelevant considerations to reach the decision. The former takes different forms and can include ultra vires action, improportianility and irrationality in decision-making. As for the latter, it can either be unreasonableness in application of fact or application of laws. There are also additional plausible basis of unreasonableness in Irish courts adopted from the Wednesbury decision. All these conditions, if proven, will lead to the High Court to reversing a previous administrative decision to suit the reasonability test.
Douglas, Roger. “Administrative Law.” (2004).
Lane, William B., and Simon Young. Administrative law in Australia. Lawbook Co, 2007.
Hawkins, Keith. “The uses of discretion.” (1995).
Article 3 of the ECHR Act 2003
Section 5 of the Refugee Act, 1996
The Administrative Decisions (Judicial Review) Act 1977
The Judicature Act. 1873.
Associated Provincial Picture Houses Ltd. v Wednesbury Corporation [1948] 1 KB 223 p.229
EMI Records (Ireland) Ltd. v. The Data Protection Commissioner, [2012] IEHC 264
O’Keeffe v An Bord Pleanala
Meadows v Minister for Justice, Equality and Law Reform
R v Secretary of State for Social Services, ex parte Wellcome Foundation Ltd [1987] 1 WLR 1166
Bradley, Anthony Wilfred, and Keith D. Ewing. Constitutional and administrative law. Vol. 1. Pearson Education, 2007.
Mark Aronson, ‘Resurgence of Jurisdictional Fact’ (March 2001) 12(21) Public Law Review 17, 27.
Administrative Appeals Tribunal. Judicial Review. Accessed 16 August 2018 from https://www.aat.gov.au/about-the-aat/engagement/speeches-and-papers/the-honourable-justice-garry-downes-am-former-pre/judicial-review
Part IV – The Grounds of Review and the Scope of Judicial Review. Accessed 16 August 2018 from https://www.arc.ag.gov.au/Documents/jrpart4.htm
Yohannes Aberham and Michael Desta. Grounds of Judicial Review. (2012). Accessed 16 August 2018 from https://www.abyssinialaw.com/about-us/item/318-grounds-of-judicial-review
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