Ireland: Good Decision-Making For Public Bodies, Guide 5: Proportionality, Discretion And Policies

Last Updated: 9 June 2016
Article by Joanelle O’Cleirigh and Roberta Guiry
Most Read Contributor in Ireland, October 2018

This is the fifth 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.

In this Guide, we look at:

  • the principle of proportionality;
  • the exercise of discretion in decision-making; and
  • how to use policies/guidelines properly.

PROPORTIONALITY

A decision may be challenged on the ground that it is disproportionate, i.e. the effect of the decision is disproportionate to the intended objective.

Proportionality generally comes into play when looking at the 'reasonableness' of a decision. As discussed in Guide 2, a decision will be unreasonable where it plainly and unambiguously flies in the face of reason and common sense. If a decision is unreasonable, it may also be disproportionate.

When considering the proportionality of a decision, look at the nature of the decision and the decision-maker. Take particular care where constitutional or European Convention rights are concerned. Remember, you do not need a sledge hammer to crack a nut.

EXAMPLE

In 1999, the applicant was appointed as principal of a vocational school. Between 2001 and 2003, three complaints were made about the way in which she managed the school. In 2005, the Minister for Education directed that an inquiry be established to investigate this. In 2011, after considering a report prepared by the head of the inquiry, the Minister decided that the applicant should be removed from her post.

Held: The Minister's decision was manifestly disproportionate. The applicant was appointed to the role at a time when the school was facing a number of challenges, including falling enrolment numbers. The three complaints that had been made against her involved events that occurred when she was relatively new to her role. By the time the Minister decided to remove her from office, these complaints were 8-10 years old. The report furnished to the Minister showed that the applicant had since been performing very well in the role. (McSorley v The Minister for Education and Skills)

DISCRETION

Decision-makers may have to exercise discretion when making decisions. They may have a choice about whether or not to do something, for example whether to approve an application, impose a sanction, provide a particular service, etc. We touched on this in Guide 2 when we discussed the obligation on decision-makers to take account of relevant factors and the need to distinguish between factors that must be taken into account (mandatory factors) and factors that may be taken into account (discretionary factors).

To ascertain whether you have discretion, go back to the source of the decision-making power, usually the legislation. If the legislation states that you "shall" or "must" do something or do something in a particular way, this will usually mean that you no discretion.

For example, if the legislation states that a complaint must be determined by a committee made up of certain specified people, then only those people may determine the complaint. If the legislation does not specify precisely who should sit on the committee, you may have some discretion here.

The exercise of discretion requires the exercise of good judgement.

CAN THE POWER TO EXERCISE DISCRETION BE DELEGATED?

The general rule is that a power must be exercised by the individual or body in which it has been vested by legislation. However, this is not always possible in practice and a number of exceptions have been recognised.

Government ministers

Government ministers cannot personally exercise all the duties and powers that have been vested in them by legislation. Responsible officials in their departments may act on their behalf. Ministers do not have to specifically delegate authority, but the official who exercises their duties or powers must be of the appropriate level and seniority. Importantly, ministers remain responsible for decisions made by their officials.

This exception is known as the Carltona principle. It is not an absolute rule; in cases of significant public importance, ministers may be required to exercise certain powers personally.

EXAMPLE

An assistant principal officer in the Department of Justice refused a couple, who had breached the terms of their entry conditions, permission to remain in the State. She did not consult the Minister before making her decision. The couple argued that the official had no authority to make the decision and that the decision could only be made by the Minister personally.

The relevant legislation specifically vested the power to refuse permission to remain in the State in the Minister for Justice.

Held: The legislation vested extensive powers in the Minister for Justice. It could not have been the intention of the Oireachtas (the legislature) that the Minister should personally exercise these powers. The assistant principal officer who made the decision had particular responsibility for the immigration and citizenship division of the Department. In making the decision, she was acting on behalf of the Minister. (Tang v Minister for Justice)

Statutory authority to delegate

Legislation may provide for a specific delegation of power. For example, the Personal Injuries Board Assessment Act 2003 states that the Injuries Board may delegate its functions in relation to the employment of staff and the determination of selection procedures to its chief executive.

PRACTICAL TIPS: DELEGATION

  • Before you delegate the power to make a decision, confirm that you have the power to do so. Check the relevant legislation.
  • Ensure the decision is one that can be delegated.
  • Only delegate to someone of the appropriate level and seniority.
  • Ensure that the person to whom you delegate will make the decision in a fair and reasonable manner.

POLICIES & GUIDELINES

Policies and guidelines can assist decision-makers in the exercise of their discretion and can also help to ensure that decisions are made in a consistent and fair manner.

However, a policy or guideline should not interfere with or 'fetter' the discretion of the decision-maker. The decision-maker must remain free to exercise his own independent judgement and to consider each case on its own merits.

EXAMPLE

The applicant, a registered firearms dealer, applied to the Minister for Justice for an occasional licence for a double barrel .47 calibre rifle. The Minister refused to grant the licence, stating that it was not "current policy" to grant firearms certificates for rifles of that type. The applicant challenged this decision, arguing that the Minister had adopted a rigid and inflexible policy and had unlawfully fettered his discretion.

Held: The decision was "infected by the vice of inflexibility". Where a statute confers a discretionary power, the decision-maker must exercise that discretion properly in each individual case. A decision-maker cannot lay down a rigid policy from which he does not allow himself to depart. The Minister did not offer the applicant an opportunity to address the possibility of an exception to the policy or the merits of the particular firearm. (McCarron v Kearney)

This case shows the importance of exercising discretionary statutory powers appropriately. It also shows that a failure to exercise a discretion at all, for whatever reason, can leave you open to challenge. If you adopt an inflexible position and adhere to it so rigidly, it may be said that you did not apply your mind to the decision at all and that you abused your statutory discretion.

PRACTICAL TIPS

DRAFTING POLICIES OR GUIDELINES

  • Draft the policy/guideline in plain, simple English. This will help ensure that all staff apply and interpret it consistently.
  • Make sure that the policy/guideline is consistent with any relevant legislation.
  • Set out the purpose of the policy/ guideline at the start.
  • State that the policy/guideline is not to be applied rigidly to all cases and that decision-makers must evaluate the merits of individual cases.
  • Make sure that all members of staff are aware of the policy/guideline and understand how it should be applied.
  • Make the policy/guideline available to the public.

USING POLICIES OR GUIDELINES

  • Direct your mind to the facts of each case and consider each case on its merits. Make it clear that you have done so by the terms of your decision.
  • Make sure that the person who will be affected by your decision is aware of the existence of the policy/guideline and that you will be referring to it when making your decision.
  • When giving reasons for making your decision, refer to the facts of the case and any policy/guideline you relied on in reaching the decision. Referring only to the policy/ guidelines without mentioning the facts of the case is not enough.
  • Do not depart from a policy/ guideline without giving an explanation. If your organisation has a policy/guideline in place, people are entitled to expect that decisions will be made in accordance with it.

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 Topics
 
Related Articles
 
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
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

Mondaq.com (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 www.mondaq.com

To Use Mondaq.com 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.

Disclaimer

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.

General

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