The Gazette 1992

JUNE 1992

GAZETTE

The Obligation to Give Reasons for Administrative Decisions

". . .once his decision was challenged, he was obliged to disclose to the prosecutor the material on which he acted and his reasons for so doing, the Minister has failed to show that he acted intra vires". 9 Broader principles were established in State (Creedon) -v- Criminal Injuries Compensation Tribunal (1988), where the respondent's unexplained refusal to award an 'ex gratia' payment to the prosecutor under a non-statutory scheme was challenged. "Once the courts have a jurisdiction and if that jurisdiction is invoked, an obligation to enquire into and, if necessary, correct the decisions and activities of a tribunal of this description, it would appear necessary for the proper carrying out of that jurisdiction that the courts should be able to ascertain the reasons by which the tribunal came to its determination. Apart from that, I am satisfied that the requirement which applies to this tribunal, as it would to a court, that justice should appear to be done, necessitates that the unsuccessful applicant before it should be made aware in general and broad terms of the grounds on which he or she has failed. Merely, as was done in this case, to reject the application and when that rejection was challenged subsequently to maintain a silence as to the reason for it, does not appear to me to be consistent with the proper administration of functions which are of a quasi-judicial nature." 10 Both Daly and Creedon were opened to the High Court in International Fishing Vessels Ltd. -v- Minister for principles of law contained in them were approved and expanded. The action concerned the refusal of a sea fishing boat licence under section 222 (b) of the Fisheries (Amendment) Act, 1959 (as inserted by section 2 of the Fisheries (Amendment) Act, 1983) for which the Marine (1989) and, in a comprehensive judgment, the Quashing the refusal, the Supreme Court per Finlay CJ stated:

Part I

By Maurice Collins BL

For some time there has been a paradox of considerable significance at the heart of Irish administrative law. On the one hand, the Irish courts have long asserted and exercised the right to quash administrative decisions, inter alia, on the grounds that irrelevant matters were taken into consideration or that there had been a failure to consider relevant matters. On the other hand, the decision-making process remained opaque because the courts did not insist that the decision-makers gave reasons for the decisions they made. 1 Thus a theoretically valuable protection was in practice rendered , less useful and, not infrequently, applications for judicial review failed to establish invalidity in the face of the decision-makers' silence. In the last decade, judicial attitudes have changed generally and in particular with regard to the obligation to give reasons. 2 That such an obligation exists can no longer be doubted, though its scope remains unclear. 3 Uncertainty surrounds the extent of the obligation, i.e. what level of explanation the obligation involves and also what are the consequences of failure to give reasons. The purpose of this article is to examine these uncertainties and to suggest answers to some of them. General principles Until recently, the Irish courts have refused to recognise any general obligation to give reasons, a position mirroring that still current in the United Kingdom. In the decided English cases, a number of grounds have been advanced in support of

Maurice Collins

this position including the fact that the decision complained of was grounded on a purely subjective opinion, 4 that what the applicant was seeking was a privilege not a right, 5 that giving reasons would be contrary to the public interest, 6 or that there was no right of appeal. 7 However, it would be wrong to suggest that even in English law, the failure/refusal to give reasons could never lead to the quashing of a decision. The House of Lords in Padfield -v- The Minister of Agriculture (1968) quashed a decision of the defendant, who had failed to give an explanation for deciding as he did, stating: " If he does not give any reason for his decision, it may be, if circumstances warrant it, that a court may be at liberty to come to the conclusion that he had no good reason for reaching that conclusion and directing a perogative order to issue accordingly". 8 The logic of this judgment (if not the judgment itself, which was not cited) was accepted here by Barron J. in State (Daly) -v- Minister for Agriculture (1987) where the same inference of no reason/bad reason was made in the face of the respondent's silence when his exercise of statutory power to terminate the prosecutor's services was challenged:

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