The Gazette 1992

GAZETTE

JULY/AUGUST 1992

rule as being de minimis (particularly O'Flaherty J). However, it is submitted that the statement of principle made by McCarthy J may be over-broad. If the only circumstances in which a " b a d " i.e. legally irrelevant, reason can invalidate a decision is where it is one which "on its own causes the decision-maker to make his decision", then as long as one or more good reasons are relied on, any number of bad reasons can be legitimately taken into account by the decision-maker. Indeed, on the face of it, these bad reasons may in fact be the primary reasons for the decision, as long as none is on its own the reason for the decision. This would appear to be contrary to the strict line taken where irrelevant considerations are taken into account by a decision maker, as exemplified by the Supreme Court decision in Flanagan -v- Galway City and County Manager (1990). 56 Of course, it will at all times be open to an applicant to argue that the " good" reasons cumulatively do not justify the decision and the decision therefore is "irrational". However, this is an extremely onerous task and it would appear that a court will not quash a decision for irrationality where there are any valid reasons for the taking of the decision. 57 International Fishing Vessels is therefore something of a paradox. Having succeeded in obliging the Minister to give his reasons and having succeeded in exposing an error of law in these reasons, the applicant's position was ultimately not improved. The value of obtaining reasons for adverse decisions remains significant, however. If the reasons given by the Minister had rested on factual allegations disputed by the applicant, they could have been challenged on that ground. Moreover, in general, it appears that where a " b a d " reason is stated by a decision-maker, the fact that the decision could have been taken for good reasons will be irrelevant, unless those reasons were stated at the time of the giving of reasons for the decision. 58

is also consistent insofar as a separate ground for decision was the irrationality of the refusal of compensation. "Bad reasons" were at issue in International Fishing Vessels Ltd. -v- The Minister for the Marine (No. 2) (1991), a Supreme Court sequel to the decision of Blayney J already mentioned. As a consequence of that detailed list of the reasons for his decision. Amongst the reasons given were allegations of misconduct that had never been drawn to the attention of the applicant, in clear breach of the audi alteram partem rule. The applicant sought judicial review of the decision as having been reached in breach of natural and/or constitutional justice. On appeal to the Supreme Court on the dismissal of its application in the High Court by Gannon J, the applicant was again unsuccessful. The applicant's right to fair procedures was accepted by the Court as it had to be and ultimately the issue on appeal was whether or not the bad reasons could be severed from the good or in some other way be ignored. The court, per McCarthy J (Hederman J concurring) stated the problem thus: decision, the respondent had provided the applicant with a " If the Minister intends to take into consideration the variety of different factors in making his decision, he must notify the person... of each of the matters; if he fails to notify the applicant of a matter which, on its own, causes him to make his decision, then his decision must be quashed. If, however, there are valid reasons for his decision based upon matters of which he has notified the applicants and given them ample opportunity to make representations, the fact that there are other reasons of which he has not given them notice, does not, in my view, invalidate his decision." 55 inadequate reasons themselves to manifest a quashable error of law and an implicit rejection of the "error approach". In International Fishing Vessels Ltd., the Supreme court seemed to have disregarded the breaches of the audi alteram partem This decision represents an acceptance of the need for

Conclusion

The emergence of a general obligation to give reasons for adminstrative decisions is to be welcomed. Such an obligation enables the effective application of the long standing rules on the exercise of administrative discretion. This is one of the major reasons for imposing the obligation. Other reasons include the entitlement of the public, insofar as they are the subjects of administrative action, to understand the reasons for making certain administrative decisions that may adversely affect them. The requirement to give reasons for decisions ought also to contribute to more rational decision-making by tribunals and help to avoid ultra vires decision-making. It is to be hoped that it will not be necessary to take judicial review proceedings in order to obtain reasons - reasons should be stated either at the time of the making of the decision or upon subsequent reasonably prompt request. The level of detail required may vary from situation to situation and the flexibility of the common law is advantageous in this regard. Questions remain to be answered and issues resolved, as indicated above, but the developing jurisprudence of the Courts should deal with these issues. " I t is to be hoped that it will not be necessary to take judicial review proceedings in order to obtain reasons - reasons should be stated either at the time of the mak i ng of the decision or upon subsequent reasonably prompt request." The giving of reasons may initially lead to a greater level of challenge to administrative decisions but with the improvement in decision-making and decision-explaining, which reasons may be expected to bring about, together with a realistic attitude to the statement of reasons (which "should not be parsed as if it were a statute" 59 ) this should be a short (Continued on page 240)

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