The Gazette 1992

GAZETTE

JUNE 1992

no reasons were given, despite a written request from the applicant's solicitor. Blayney J rejected the respondent's contention that the decision to grant a licence was purely discretionary 11 and went on to hold that the duty to act fairly and judicially necessarily involved an obligation to give reasons. Once the decision was reviewable, a refusal to give reasons: "deprives the applicant of the material it needs in order to be able to form a view as to whether grounds exist on which the Minister's decision might be quashed. As a result, the applicant is at a great disadvantage, firstly, in reaching a decision as to whether to challenge the Minister's decision or not, and, secondly, if he does decide to challenge it, in actually doing so, since the absence of reasons would make it very much more difficult to succeed." 12 Furthermore, Blayney J held that, the flaw in the application might be remediable but, if kept in ignorance of what that flaw was, the applicant would not be in a position to mend its hand and reapply. The duty to give reasons has recently been judicially extended into areas where it previously had been denied, albeit in quite particular circumstances. Thus in Fajujonu -v- Minister for Justice, (1990), the Supreme Court held that the defendant could exercise his powers of deportation against the plaintiffs (who were illegal aliens but who were members of an Article 41 family, the children of which were Irish citizens) only "for good and sufficient reasons" (per Finlay CJ) or if "satisfied for stated reasons" that the common good required it (per Walsh J). 13 The approach in Fajujonu contrasts strongly with the High Court decision of Costello J in Pok Sun Shum -v- Ireland, (1986), where it was held that the powers of the State to control immigration, being exercised once again against an alien who was part of an Article 41 family, were unfettered by a duty to give reasons. 14 The status of Pok Sun Shum in the light of Daly, Creedon and International Fishing Vessels Ltd., and particularly in the light of Fajujonu, must now be considered suspect.

Similarly, it would appear that the general statement of law to the effect that the non-renewal of a prisoner's temporary release (as opposed to the revocation of a current release) does not attract the rules of natural justice and 'ipso facto' does not require the giving of reasons, which is to be found in the High Court judgment of Murphy J in Ryan -v- The Governor of Limerick Prison, (1988), 15 is too broad. In a subsequent decision of the High Court, Sherlock -v- Governor of Mountjoy Prison, (1990) (in which, unfortunately, Ryan does not appear to have been cited) Johnson J held that where a large number of continuous temporary releases, spanning a period in excess of 12 years, had been granted to the applicant, he had acquired a "legitimate expectation" that either his release would be renewed or, if not, that reasons for the non-renewal would be furnished to him, to which he could then respond. 16 In this (Murphy) -v- Kielt, (1984) and it may be that the point really at issue was the right to a hearing before the decision not to renew was made rather than (or as well as) the right to be told the reasons for the non- renewal. In either event, the decision represents a step forward from Ryan which, it is submitted, places too much emphasis on the application/ forfeiture (or, put another way, privilege/right) distinction that it is of such great importance in English administrative law. 17 It is not being suggested, however, that there do not still remain areas of administrative decision-making on which the courts will not impose a duty to give reasons. Certainly, it would appear from the case law to date that only in very limited circumstances, if at all, would the Director of Public Prosecutions be obliged to give reasons for his decisions. 18 Statutory duty to give reasons It should be noted that, quite apart from the common law, a duty to give reasons may be imposed by Statute or by Statutory Instrument. Numerous examples may be given of which the most recent are section 14 4 respect, the High Court was following the judgment of the Supreme Court in The State

of the Competition Act, 1991 (under which the Minister for Industry and Commerce shall state reasons for the making of orders dealing with the abuse of dominant positions) and section 4(a) 13 of the Health (Nursing Homes) Act, 1991 (which requires a Health Board proposing to make decisions adverse to an applicant to give reasons for its proposed decision and to take into account any representations made in response). Contra the application/ forfeiture distinction manifested in Ryan, the requirement in respect of nursing homes applies equally to refusals of initial application for registration and to revocations of existing registrations. Another example of a statutory duty in this regard is the Trade Mark Rules, 1963 (see Rule 43 which refers to "grounds of a decision") which rules were considered and applied by Barron J in Anheuser Busch Inc. -v- The Controller of Patents, Designs and Trade Marks, (1987). Enforcement notices under section 10 and prohibition notices under section 11 of the Data Protection Act, 1988 must state reasons and grounds, respectively, and reasons must also be given for prohibition notices under section 37 of the Safety, Health and Welfare at Work Act, 1989. It would appear to be the clear policy of the Oireachtas that administrative notices, to have immediate legal effect (even though appealable), should be accompanied by an explanation for their issue and an outline of the complaint being made. In practical terms, perhaps the most important of the statutory provisions is that in the planning code, specifically section 26 8 (a) of the Local Government (Planning and Development) Act, 1963, supplemented in respect of An Bord Pleanála by Article 48 of the Local Government (Planning and Development) Regulations, 1977. (S.I. No. 65)/1977). In respect of decisions on appeal, Article 48 requires that all notifications of appeal decisions be accompanied by "a statement of the reasons for the decision (including in the case of any decision to grant permission or approval subject to

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