Ireland: Good Decision-Making For Public Bodies, Guide 2: Three Fundamental Principles

Last Updated: 4 March 2016
Article by Joanelle O’Cleirigh and Roberta Guiry
Most Read Contributor in Ireland, October 2018

This is the second in our new series of Good Decision-Making Guides for Public Bodies. These Guides highlight what is best practice in decision-making and offer simple and practical tips to reduce the risk of challenge to your decisions.


There are three fundamental principles of good decision-making that decision-makers in public bodies must always have in mind when making decisions.

The decision-making body must:

i. have the legal power to make the decision.

ii. have regard to any relevant factors and exclude any irrelevant considerations.

iii. make a rational decision.

In this Guide we look at each of these principles.


The decision-making body must have the legal power to make the decision. If it does not, it will be acting beyond its powers (or ultra vires) and the decision will be invalid.

The power to make a decision may be:

  • Express: set out in primary legislation (statutes) or secondary legislation (orders, rules, regulations, bye-laws).

    For example, the Central Bank (Supervision and Enforcement) Act 2013 gives the Central Bank an express power to "give a direction in writing to [a] regulated financial service provider... to take [specified] actions."
  • Implied: a power will generally only be implied where (i) it is justified by the statutory context; (ii) it is not of such a nature that you would expect to see it set out specifically; and (iii) it is consistent with the statutory scheme (see example below).
  • Incidental: a power to do whatever is incidental to or consequential upon specific statutory powers. The extent of these powers will depend on the general policy underlying the legislation in question.

    For example, the Personal Injuries Board Assessment Act 2003 gives the Injuries Board "all such powers as are necessary or expedient for, or incidental to, the performance of its functions under this Act."


The Commission to Inquire into Child Abuse sought to limit the number of legal representatives who could be present during evidential hearings to one solicitor and one barrister per party. It did not have an express power to do this under the Commission to Inquire into Child Abuse Act 2000.

The Commission argued that the power was implied and incidental to the obligation imposed on it under the Act to conduct evidential hearings "in an atmosphere that is as sympathetic to, and as understanding of, [victims] as is compatible with the rights of others".

High Court: A power to limit legal representation could not be implied. If the Commission were to be given such an unusual and far-reaching power, express legislative authority would be required (Re Commission to Inquire into Child Abuse).

The power to make a decision must be exercised properly. In some cases, the purposes for which a power may be exercised will be set out in the relevant legislation. Where the purpose of the power is not set out explicitly, it must be determined by implication from the subject-matter, scope and purpose of the legislation as a whole.


The Solicitor Accounts Regulations give the Law Society power to appoint an accountant to investigate whether a solicitor has complied with the Regulations.

The Law Society appointed an accountant under the Regulations and instructed her to (i) ascertain whether the solicitor in question had complied with the Regulations; and (ii) look for evidence of fraudulent personal injuries claims. On the basis of the accountant's report, the Law Society decided to seek a disciplinary inquiry into the solicitor.

Supreme Court: In instructing the accountant to investigate alleged fraudulent claims, the Law Society tried to pursue a purpose which was not authorised by the Regulations. The decision to appoint the accountant was invalid and the report was inadmissible (Kennedy v Law Society of Ireland (No 3)).


The decision-maker must have regard to all relevant factors which are before it and must disregard any irrelevant factors.

Relevant factors: In some cases, legislation will set out the factors which the decision-making body should or must take into account. Always check whether the list of factors is intended to be exhaustive. Look out for words such as "in particular" or "including" (e.g. the decision-making body shall have regard "in particular to..."). This suggests that the factors listed are not exhaustive and there may be other relevant factors arising from the circumstances of the case.

It is important to identify which factors are mandatory (i.e. must be taken into account), and which factors are discretionary (i.e. can be taken into account).

Irrelevant factors: Taking account of an irrelevant consideration may also provide grounds for judicial review.


A doctor applied for a position with the Southern Health Board. He was told that extra credit would be given to applicants who passed an optional Irish language test. He did not sit the test and was not offered the position. He later learned that the test had proved crucial in the selection of the successful candidate. He challenged the decision of the Board on the basis that the sole power to declare the appropriate qualifications for the position rested with the Minister for Health and competence in oral Irish was not a qualification prescribed by the Minister.

Supreme Court: The Board had acted outside its powers in introducing a new and unauthorised qualification (The State (Cussen) v Brennan).

Decision-making bodies may sometimes be required to "have regard to" a particular opinion, report, guideline, recommendation etc. This requires the decision-making body to give reasonable consideration to the particular matter, but not to follow it without question.


The mother of a child with autism applied to the Department of Social Protection for domiciliary care allowance.

Under the Social Welfare Consolidation Act 2005, applications for domiciliary care allowance are determined by a 'deciding officer' in the Department, who must "have regard to" the opinion of a Department medical assessor.

The deciding officer refused the application on the basis of the opinion of the medical assessor. The mother challenged this refusal, claiming that the application was decided by the medical assessor and not by the deciding officer. The deciding officer in question had dealt with 3,806 applications and had followed the opinion of the medical assessor each time.

High Court: The deference shown by the deciding officer to the opinion of the medical assessor was so great that in reality it was the medical assessor who determined the application. This breached the provisions of the Act and tainted the decision-making process (B v The Minister for Social Protection).


Your decision must be reasonable. This does not mean that your decision must be absolutely correct or that a court or other body faced with the same facts would have reached the same decision. It means that in making the decision, you must have applied logical and rational principles.

The courts recognise that decision-making bodies have specialist expertise and knowledge in their given areas and that they should be free to make decisions without undue interference from the courts. The courts will generally only quash a decision on the ground of unreasonableness where:

  • it plainly and unambiguously flies in the face of fundamental reason and common sense (the Keegan test); or
  • there was no relevant material before the decision-making body to support the decision (the O'Keeffe test).

If the court finds that a decision is unreasonable, it will not remake the decision; it will usually quash it and send it back to the original decision-making body for a fresh consideration.


Mr O'Leary, a hunter, held a firearms licence for a .243 bolt action Ruger rifle. He sold the .243 rifle and purchased a.308 calibre hunting rifle. He applied to the local Superintendent to substitute his existing firearms certificate for the .308 rifle. The Superintendent refused his application, citing safety concerns. However, he indicated that he would be willing to grant him a licence for a 30-06 calibre rifle.

High Court: The Superintendent's decision was fundamentally at variance with common sense. He refused the licence for the .308 because it was a more powerful and heavier calibre rifle than the .243. Yet, he indicated that he would be willing to grant a licence for a 30-06 calibre rifle, which delivers a faster projectile than the .308. It is difficult to see how one rifle could be deemed too dangerous to the public, while another which delivers its rounds faster is viewed favourably (O'Leary v Maher).


  • Before you make a decision, carefully examine the source of your decision-making power and ascertain what you can and cannot do.
  • Make sure you have all the information you need. If you do not, get it.
  • Check that the facts on which you propose to base your decision are accurate and up to date.
  • Keep a written record of the factors that influenced your decision and that factors you considered irrelevant.
  • Apply logical and rational principles when making your decision.


In addition to complying with each of the above principles, decision-makers must apply fair procedures. We will discuss this 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

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

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions