Ireland: Good Decision-Making For Public Bodies, Guide 4: Fair Procedures – Beware Of The Pitfalls

Last Updated: 13 May 2016
Article by Joanelle O’Cleirigh and Roberta Guiry
Most Read Contributor in Ireland, October 2018

This is the fourth in our 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.

Decision-makers have certain powers and privileges, which must be exercised fairly and responsibly. In Guide 3, we looked at fair procedures generally and the requirement that decision-makers be impartial and free from bias.

In this Guide, we consider the duty of decision-makers to:

  • notify the person affected by the decision of any allegations against him/her;
  • give him/her the opportunity to be heard;
  • allow him/her to call witnesses, make representations and cross-examine the other side (where appropriate);
  • allow him/her to have legal representation; and
  • give reasons for the decision and keep a written record of these reasons.

GIVE THE PERSON NOTICE

A decision-maker must allow the person who is the subject of the decision to know the case against him/her.

This involves:

  • notifying the person that a decision adverse to him/her may be made;
  • notifying him/her of the possible consequences of the decision;
  • providing the person with all relevant material or, if publicly available, directing him/her to where it may be found (e.g. a website); and
  • giving him/her a reasonable time in which to consider the material and an opportunity to respond.

EXAMPLE

The applicant challenged a decision of the Garda Commissioner removing him from his services as a probationer garda. The Commissioner did not tell the applicant that he had received adverse reports about him from senior officers and nor did he give the applicant an opportunity to respond to the reports.

High Court: The Garda Commissioner should have given the applicant copies of the adverse reports and an opportunity to respond to them. (O'Brien v Garda Commissioner)

HEAR THE PERSON

The decision-maker must hear both sides of the story. This does not mean that he/ she must hold an oral hearing in every case. In some cases, it may be sufficient to ask for written submissions.

However, an oral hearing may be appropriate in cases where, for example, the decision will affect the person's liberty, reputation or livelihood, or where there are conflicting facts that cannot be resolved without oral evidence.

In deciding whether an oral hearing is necessary, consider:

  • the nature of the inquiry;
  • the rules of the inquiry;
  • the consequences of the decision for the person who will be affected by it;
  • whether the issues arising are questions of law or fact; and
  • whether the person has requested an oral hearing.

The right to be heard can only be displaced in exceptional circumstances.

EXAMPLE

A doctor was summoned to appear before the Fitness to Practise Committee of the Medical Council in relation to serious allegations made against him by two patients. The patients had also made similar allegations against the doctor in the UK and the British General Medical Council had conducted a hearing into the matter.

The Fitness to Practise Committee decided not to call the two patients to give oral evidence (as they were unwilling to travel to Ireland), and to rely instead on the transcript of the hearing before the British General Medical Council.

Supreme Court: The ultimate decision of the Fitness to Practise Committee had the potential to affect the doctor's good name and reputation. He could not be deprived of his right to fair procedures. He had a right to hear his accusers give evidence against him and to cross-examine them. (Borges v Fitness to Practise Committee)

ALLOW THE PERSON TO CALL WITNESSES, MAKE REPRESENTATIONS AND CROSS-EXAMINE

Usually, where an oral hearing is allowed, the parties can call witnesses and cross-examine opposing witnesses. However, this is not always the case and much depends on the nature, scope and purpose of the decision being made, the rights that are involved and the manner in which those rights may be affected. For example, if a person's good name or reputation is at stake, it may be appropriate to allow him/her to call witnesses and to cross-examine witnesses for the other side.

You must give both sides the same rights. If you allow one side to call witnesses, allow the other side to do so also.

EXAMPLE

A student in UCD was accused of plagiarising an essay and was summoned to appear before a committee of discipline. She was told she could only be represented by her dean of residence or by an official of the student's union. No witnesses were called at the meeting of the committee.

High Court: As plagiarism is a most serious breach of discipline and is criminal in its nature, the disciplinary procedures should have resembled those of a court hearing. The student should have been allowed to be represented by someone of her choice. She should also have been allowed to hear the evidence against her, to challenge that evidence on cross-examination, and to present her own evidence. (Flanagan v UCD)

ALLOW LEGAL REPRESENTATION

The right of access to a lawyer and to legal advice is a fundamental right. As noted above, people have a right to choose their own legal representative(s). A case referenced in Guide 2, In Re Commission to Inquire into Child Abuse, also illustrates this point.

However, representation by a lawyer at an oral hearing may not be required in every case. You should consider whether, in all the circumstances, representation is necessary in the interests of justice.

Consider in particular:

  • the seriousness of the charge;
  • the potential penalty;
  • whether points of law may arise;
  • the person's capacity to present his/ her own case;
  • procedural difficulties; and
  • the need for reasonable speed in the decision-making process.

EXAMPLE

A prisoner requested that he be afforded legal representation at a sentencing review hearing before the Sentence Review Group. This request was refused.

The function of the Sentence Review Group was to advise the Government on the administration of long-term prison sentences and to make recommendations to the Minister for Justice.

High Court: The prisoner was not entitled to legal representation at the hearing. Legal representation was not necessary to satisfy the requirements of fair procedures. The function of The Sentence Review Group was purely advisory. Full legal representation at the hearing would be disproportionate and would effectively change the whole character of the procedure. (Barry v The Sentence Review Group)

GIVE REASONS AND KEEP A WRITTEN RECORD OF THE REASONS

The person affected by the decision is also entitled to know why the decision was made so that he/she can decide whether there are grounds to challenge it.

This means that decision-makers must give reasons for their decisions. The reasons should be clear and intelligible and address the substance of the issues. Generally, they should be given at the same time as the decision.

EXAMPLE

The applicant applied for a certificate of naturalisation with a view to obtaining citizenship. The Minister for Justice, Equality and Law Reform refused the application. He did not provide any reasons for doing so and claimed he was not obliged to explain his decision.

Supreme Court: Although the relevant legislation stated that the Minister had "absolute discretion" to grant a naturalisation certificate, this could not mean that he was not obliged to have a reason. The rule of law requires all decision-makers to act fairly and rationally, meaning that they must not make decisions without reasons. The applicant could not, without knowing the Minister's reason for refusing his application, ascertain whether he had grounds for judicial review. (Mallak v Minister for Justice, Equality and Law Reform)

PRACTICAL TIPS

  • Make sure that the person who will be affected by the decision knows the case against him/her and is given (or can access) any information on which you might base your decision.
  • Give the person a reasonable opportunity to make his/her case.
  • Carefully consider how you will carry out any investigation—should there be an oral hearing?
  • If there is an oral hearing, consider whether to permit legal representation, the calling of witnesses, and cross-examination.
  • Give both sides the same rights.
  • Keep a record of all steps taken throughout the process, all decisions made and the reasons for making these decisions.
  • Give clear and intelligible reasons for your final decision.

NEXT GUIDE

Our next Guide will consider:

  • the requirement that decision be proportionate;
  • the extent of the decision-maker's discretion; and
  • whether the decision-maker can delegate the power to make the decision.

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.

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