Ireland: Good Decision-Making For Public Bodies, Guide 1: The Basics

Last Updated: 29 January 2016
Article by Joanelle O’Cleirigh, Sara Carpendale and Roberta Guiry

Every year the High Court deals with hundreds of applications seeking to challenge the decisions of public bodies. A total of 835 applications were made in 2014; 973 in 2013; and 998 in 2012. If you do not follow best practice when making a decision that affects the legal rights of others, you risk a legal challenge to your decision and becoming one of these statistics.

Our new series of Good Decision- Making Guides highlight what is best practice in decision-making and offer simple and practical tips to reduce the risk of challenge to your decisions.

In this first Guide, we consider why it is important for decision-makers in public bodies to exercise care when making decisions; the common pitfalls in decision-making; and how a decision of a public body might be challenged.

WHY IS IT IMPORTANT FOR PUBLIC BODIES TO EXERCISE CARE WHEN MAKING DECISIONS?

Good decision-making is an essential principle of good administration. If public bodies do not follow best practice when making decisions, this can:

  • result in the decision being challenged, which is costly and time-consuming for the decision-making body;
  • be distressing for the person affected by the decision, particularly if he or she is put to the trouble and expense of challenging the decision;
  • cause reputational damage to the decision-making body and undermine public confidence in government as a whole; and
  • affect the decision-making body's ability to implement policy.

WHAT ARE THE COMMON PITFALLS IN DECISION-MAKING?

Common pitfalls in decision-making include:

  • failing to follow legislative requirements or relevant policies and procedures;
  • failing to properly assess relevant information;
  • making factual errors;
  • failing to apply fair procedures; and
  • failing to give reasons.

WHAT IS ADMINISTRATIVE LAW?

In order to best understand the ways in which decisions can be challenged, we need to examine the differences between administrative (public) and private law.

Administrative or public law is the body of law that governs public bodies in the exercise of their public functions.

However, public bodies are not governed exclusively by public law; private law applies to public bodies in certain situations.

EXAMPLE

If a Government department enters into a contract with a stationery supplier, the private law of contract governs the relationship between the parties.

If the department puts the contract for the supply of stationery out to tender, any decision on the award of the contract must comply with administrative or public law.

Judicial review is a safeguard that applies specifically to administrative or public law.

WHAT IS JUDICIAL REVIEW?

Judicial review is a procedure that allows the High Court to review the manner in which a public body exercising a public law function made a decision. In judicial review proceedings, the Court is mainly concerned with the manner in which the body made the decision, rather than with the substance or the merits of the decision. In this way, judicial review differs from an appeal.

The Court will look at whether the decision in question was one which the body had power to make and whether the body complied with the law and the principles of fair procedures when making the decision.

WHAT TYPES OF BODY MAY BE SUBJECT TO JUDICIAL REVIEW?

Bodies exercising functions of a public law nature may be subject to judicial review.

This includes what might be regarded as typical public bodies (e.g. Government departments), but also private bodies discharging public functions (e.g. regulatory bodies such as The Medical Council).

Examples of bodies that may be judicially reviewed include:

  • Government ministers or departments;
  • Statutory bodies;
  • Local authorities;
  • Statutory tribunals;
  • Compensation tribunals;
  • Non-commercial semi-state bodies;
  • Licensing bodies;
  • Regulatory bodies;
  • The District and Circuit Courts (but not the Superior Courts);
  • The DPP; and
  • Some sports associations.

WHAT TYPES OF DECISION CAN BE JUDICIALLY REVIEWED?

In general, the High Court will only entertain a judicial review application where:

  • there is a public law dimension; and
  • there is a decision, act or determination which affects some legally enforceable right.

PUBLIC LAW DIMENSION

To figure out if there is a public dimension to a decision, look at:

  • the nature of the decision-maker;
  • the source of the decision-making power; and
  • the nature of the particular decision.

 The public law dimension may not always be immediately obvious.

EXAMPLE:

Bus Éireann operated the school transport scheme. It entered into contracts with contractors who then hired bus drivers. The contractors were required to ensure that all drivers were vetted with An Garda Síochána and to notify Bus Éireann if any driver had a criminal conviction.

Bus Éireann stopped a driver from driving a school bus when it discovered that he had two criminal convictions. The driver sought to challenge the decision. Bus Éireann argued that its decision could not be judicially reviewed as it was a contractual matter.

High Court: The decision could be judicially reviewed. The Court noted that (i) the national school system consists of the public provision of primary education; (ii) transport to and from school had been an entitlement for at least two generations; (iii) the school transport scheme was publicly funded; and (iv) the functions of Bus Éireann were of statutory origin. (Mac Uaid v Bus Éireann)

DECISION WILL AFFECT SOME LEGALLY ENFORCEABLE RIGHT

There must be a decision, act or determination which affects some legally enforceable right, or a right so close to a legally enforceable right that it is a probable next step that some legal right will be infringed. Decisions may have adverse implications for certain persons, but that does not mean that they affect their legal rights.

EXAMPLE:

A dispute between Ryanair and a trade union over pay and conditions for ground handling agents resulted in the setting up of an inquiry under the Industrial Relations Act 1990. Two independent persons were appointed to conduct the inquiry and to prepare a report for the minister. The inquiry engaged an expert body to carry out a comparative study of pay and conditions. The report of the inquiry made a number of findings of fact.

Ryanair sought to challenge the report by way of judicial review.

High Court: Ryanair could not challenge the report by way of judicial review. The report was a mere fact finding report. Therefore there was no 'decision' capable of being judicially reviewed and Ryanair's legal rights had not been affected by the report. The Court said that the argument that publication of the report might lead to the imposition of some adverse requirement on Ryanair was "entirely speculative" and could not be described as a "probable consequence or next step". (Ryanair v Flynn)

  • the grant or refusal of planning permission;
  • the grant or refusal of a licence;
  • the grant or refusal of asylum;
  • the refusal to hear a complaint;
  • decisions on the conduct of investigations; and
  • decisions taken on foot of policy documents, guidance documents or government circulars.

WHAT CAN HAPPEN IF A DECISION OF A PUBLIC BODY IS SUCCESSFULLY JUDICIALLY REVIEWED?

The High Court can make one or more of the following orders:

  • Certiorari – an order cancelling the decision. The High Court will not re-make the decision; it will send the matter back to the decision-maker so that it can make the decision properly. This is the most common type of order made in judicial review proceedings.
  • Mandamus – an order directing the decision-maker to do something, e.g. to reconsider a decision.
  • Prohibition – an order prohibiting the decision-maker from doing something, e.g. making a decision that it does not have power to make.
  • Declaration – an order declaring what the law is.
  • Injunction – an order prohibiting the decision-maker from doing something or requiring them to do something.
  • Damages – financial compensation (only awarded in certain circumstances).

WHAT ARE THE GENERAL PRINCIPLES OF GOOD DECISION-MAKING?

If you are making a decision that might affect the legal rights of others, you must:

  1. have the power to make the decision.
  2. have regard to any relevant factors and exclude any irrelevant considerations.
  3. make a rational decision.
  4. comply with fair procedures and any other legal or procedural requirements.

In Guide 2, we will look at the first three of these principles.

Fair procedures will be discussed in Guide 3.

This article contains a general summary of developments and is not a complete or definitive statement of the law. Specific legal advice should be obtained where appropriate.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.