The Gazette 1992

JUNE 1992

GAZETTE

conditions, the reason for the imposition of the conditions)." 20 Of course, in cases to which these provisions apply, as with the other statutory provisions mentioned above, the existence of the duty to give reasons cannot be doubted and the common law principles are relevant "only as to a consideration of the reasons why the statutory obligation exists", as has been authoritatively stated by the Supreme Court in O'Keefe -v- An Bord Pleanala, (1991) 21 Therefore, when a statutory obligation is at issue, the terms of the statute or regulation must first be considered. The extent of the obligation imposed by the planning code in relation to appeals was a crucial issue in O'Keefe and is considered below. Finally, it should be noted that Ireland is one of the few common law jurisdictions not to have created $ general right to be given reasons for administrative decisions. Such a right has existed in the United States in relation to federal administrative agencies since 1945 22 in the United Kingdom since 1958 23 and in Australia (again in respect of federal agencies) since 1975 24 . The only

challenged, whether by way of appeal or by judicial review. The facilitation of appeals has been proffered as a rationale for imposing the obligation to give reasons in Daly, Creedon, International Fishing Vessels Ltd. and in Anheuser Busch Inc. (where the appeal was unusual in that it was by way of full re-hearing). This emphasis on compelling reasons to be given so that courts may correct the errors of inferior tribunals has also been accepted in other jurisdictions and by academic writers. 26 It clearly is an important element of the obligation but equally clearly is not the only Firstly, it would appear perverse to require a complainant to issue proceedings challenging a decision in order to be furnished with reasons for the decision, when such reasons may well satisfy him that the decision was properly taken. This point was recognised by Blayney J in International Fishing Vessels and is well put in a 1983 Australian decision. "[Section 13 1 of the Administrative Decisions (Judicial Review) Act] requires the decision-maker to explain his decision in a way which will enable a person aggrieved to say in effect "even though I may not agree with it, I now understand why the decision went against me. I am now in a position to decide whether that decision has involved an unwarranted finding of fact or an error of law, which is worth challenging" 27 . Secondly, and more fundamentally, the strict facilitation of appeals/rule of law approach fails to recognise the right of the citizen to know why an adverse decision has been made. The argument for a more generally based right to reasons focuses on the reaction of the "consumer" of the decision and stresses the importance of fairness and comprehension. This approach is discernible in Creedon and in the judgment of the Supreme Court in Breen -v- The Minister for Defence, (1990), in which the court unanimously held that the respondent had failed to properly consider the effect of a damages award on the applicant's army pension. Having element and on its own, it is submitted, represents a far too limited approach.

criticised the Minister for failing to explain his assessment, O'Flaherty J went on: "I am far from saying that every administrative decision must be accompanied by elaborate reasons such as would be appropriate to a judgment but the citizen's sense of resentment and frustration can be readily understood in circumstances where he has presented what he thinks is a viable case and has been met simply by a blanket refusal to change by the adminstrative decision-maker.'' 28 A similar point was made in the High Court by Murphy J in O'Donoghue -v- An Bord Pleanala, "It is clear that the reason furnished by the Board (or any other tribunal) must be sufficient, first, to enable the courts to review it and, secondly, to satisfy the persons having recourse to the tribunal that it has directed its mind adequately to the issue before it. 29 This second rationale places a value on allowing the user of administration to discover where he went wrong and to modify his position accordingly - in short, it encourages active participation in the administrative structure rather than merely passive acceptance of administrative decisions, whether positive or negative. 30 This rationale is entirely consistent with, and vindicative of, the important role of "the people" in Irish constitutional law 31 and with the role of the administrative and judicial systems in seeing not just that justice is done but is also seen to be done. (1991) where he stated:

generally applicable statutory provision in Ireland relating to reasons is section 6 3 of The

Ombudsman Act, 1980, which, inter alia, confers on the Ombudsman the power to recommend that reasons be given by an agency for any decision he has investigated. This is of course

a long way from the statutory provisions mentioned above.

Recent Irish decisions accepting the obligation to give reasons are also

" Ireland is one of the few common law jurisdictions not to have created a general right to be given reasons for administrative decisions."

supported by reference to the discipline imposed thereby on

decision-makers. The obligation to give reasons structures the exercise of discretion, compelling administrators to consider both parties' points of view and to weigh one up against the other in a considered fashion. This was the rationale for the Supreme Court's requirement for reasons to be given in Fajujonu. n

When the obligation arises As has been pointed out by Hogan and Morgan, 25 most of the reported cases suggest that the obligation to give reasons arises only if and when a decision complained of is

It is clear from the decided cases that, as far as the common law is

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