The Supreme Court has over the past year or so greatly clarified and expanded the principles underpinning judicial review. This is evident in three areas: the duty to give reasons; the right to an oral hearing; and the scope in which a perceived wrong decision can be challenged.
The logic for a decision maker to state reason(s) for their decision should be clear. For example, how can one formulate the grounds of an appeal without being informed as to the manner in which a decision has been reached?
Two Supreme Court judgments from last year have unequivocally stated that a decision maker is obliged to give reasons (Mallak v Minister for Justice, Equality and Law Reform IESC 59 and Rawson v Minister for Defence IESC 59). The former case concerned the refusal to provide a certificate of naturalisation and the latter concerned disciplinary proceedings in the Defence Forces.
The rationale for a duty to give reasons was cogently put by Mr Justice Nial Fennelly in Mallak where he stated that "several converging legal sources strongly suggest an emerging commonly held view that persons affected by administrative decisions have a right to know the reasons on which they are based, in short to understand them". As a result of this judgment, all bodies subject to judicial review as well as inferior courts are required to provide reasons basing their decision(s), save where obvious, rather than simply rejecting or accepting a position.
It is difficult to argue with the imposition of this principle notwithstanding that it will undoubtedly impose greater burdens and costs on administrative bodies and courts.
A similar, if not greater, administrative concern applies to the now enlarged right to an oral hearing. This growth area of judicial review has largely been influenced by the European Convention on Human Rights as evidenced by the Supreme Court judgment in Donegan v Dublin City Council IESC 18. Whilst the judgment may be constrained to housing law (and was recently applied by Mr Justice John Hedigan in Webster v Dún Laoghaire County Council IEHC 119), there is a live issue as to whether the right to an oral hearing will mushroom as a result of this judgment when a conflict of fact arises that impacts upon a fundamental right of an applicant. Time will tell.
Challenging a decision has arguably become easier as a result of the acceptance by the Supreme Court of a proportionality analysis in the split judgment of Meadows. Prior to this case, an applicant faced the onerous hurdle of convincing the High Court/Supreme Court that a decision “flies in the face of fundamental reason and common sense”. The modified Meadows test, simply put, grafts the principle of proportionality onto existing principles.
The test is still being teased out in subsequent judgments and offers applicants for judicial review more scope to challenge a decision.
'Valuable assessment method'
The doctrine of proportionality was recently discussed, more generally, by the Supreme Court in Minister for Justice and Equality v Ostrowski IESC 24. This case was an appeal relating to the European Arrest Warrant system. The court noted its earlier Meadows judgment but did not seek to modify the test stated in Meadows. Instead, Mr Justice Liam McKechnie commented on the doctrine as a "valuable assessment method" and that "there is a powerful value in its name, identity and recognition which adds to its intrinsic impact".
However, the tide of liberalism does not apply to procedural rules governing judicial review. In Shell v McGrath IESC 1, the use of the plenary route as a way of circumventing the tight time period of three months for judicial review was significantly restricted. This case concerned a challenge to compulsory acquisition orders relating to the Corrib gas field in Co Mayo.
Mr Justice Frank Clarke held, on behalf of the court, that to allow the use of the plenary route would make "a nonsense of the system of judicial review" if such was generally permissible.
The rationale for the shorter time period is linked to the “significant public interest advantage in early certainty as to the validity or otherwise of such public law measures”.
The court acknowledged that there may be circumstances in which the plenary route might be justifiable (for example, when a plaintiff relies upon a public law measure and the defendant seeks to challenge such) but did not deem the facts of the appeal within this exception.
Glen Gibbons is a barrister