Admin Law

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General Principle

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Administrativelaw is an area of public law.Public Law means the law governing relations between the individual and theState. This is in contrast with private law (e.g. the law of contract orprivate property), which regulates relations mainly between private individuals.

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HistoricDevelopment

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Following the industrialrevolution, government and the State greatly increased its areas of regulation,for example focussing more on land use, commerce etc. The rise of politicaldemocracy and the Welfare State at this time was also key to government’sincreased activity – social welfare benefits, free education and health care.

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Dicey

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His main principle was that ministersand other state bodies should be subject to the same legal controls as privatepersons. As such, Administrative Law today deals with theorganisation, composition, functions and procedures of public bodies, theirimpact on citizens, and the legalrestraints to which they are subject.

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Constitutionality

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In Ireland, this now means that AdministrativeLaw deals with how the fundamental principles of the Bunreacht na hEireann 1937are put into practice by the organs of the Irish State.a

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East Donegal Cooperative Livestock Mart Ltd v AG[1970]

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WalshJ

‘…the Presumption of Constitutionalitycarries with it … that the Oireachtas intended that proceedings, procedures,discretions and adjudications which are permitted, provided for, or prescribedby an Act of the Oireachtas are to be conducted in accordance with theprinciples of Constitutional Justice.’

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WhatAre These Principles of Constitutional Justice? Rule of Law and Separation ofPowers?

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Rule of Law comprisesfour principles:

Theprinciple of legality whereby every executive or administrative act whichaffects legal rights, interests or legitimate expectations must be legallyjustified;

Everyone,including the Government and its servants, is subject to the law;

Thelegality of executive or administrative acts is to be determined by judges whoare independent of the Government;

Thelaw must be public, precise, ascertainable and predictable in its operation.

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Separation of Powers

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The Legislature: The Institution with the powerto create, amend and repeal laws. In Ireland, this legislative power isvested in the Oireachtas under Article 15 of the Constitution.

The Executive: The Institution responsible forthe daily Governing of the State. In Ireland, this Executive power isvested in the Government or its delegates under Article 28 of the Constitution.

The Judiciary:This Institution interprets and applies the laws. In Ireland, this judicial power isvested in the Courts under Article 34.

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Separation of Powers

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Tomake sure that there is a system of checks and balances in the exercise ofpublic power so that no single branch of the State has too much power or isable to dominate the others. This principle is the cornerstone ofAdministrative Law in Ireland.

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Types of Administrative and Public Bodies

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i. AnGarda Siochana;

ii. AnBord Pleanala;

iii. TheHealth Service Executive;

iv. TheRefugee Appeals Tribunal;

v. TheRevenue Commissioners;

vi. The Competition Authority.

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HSEv Commissioner of Valuation [2008]

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MacMenamin J: 4 criteria – 1)Nature & function 2) Control & integration 3) Control of expenditure &source of funding 4) Staffing arrangements &funding [On this test, the HSE was at the‘epicentre’ of government].

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CentralBank of Ireland v Gildea [1997]

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[found to be a semi-state body –powers could be withdrawn at any stage by Oireachtas, but while they retainedpowers – not a state organ; specific legislation required to deem employees“civil servants”]

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Scope of Judicial Review

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Judicial Review simply means thata decision made by a public body is “reviewed judicially (by a judge)”. Judicialreview, therefore, is a type of court proceeding where a judge of the HighCourt reviews the lawfulness or legality of a decision or action of theinferior courts, tribunals and wide variety of other administrative bodies. Itis a remedy exclusive to the Superior Courts (High Court, the Court of Appealor the Supreme Court). If those decisions or actions are valid, they will beupheld by the reviewing court. But, if they are invalid, the reviewing courtwill “quash” them.

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Meadowsv. Minister for Justice, Equality and Law Reform [2010]

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MurrayCJ

“Judicialreview is concerned with the Courts exercising their constitutional duty to ensurethat powers, governmental and administrative are exercised within the law andthe Constitution and…in a manner consistent with the rights of individualsaffected by them. In exercising its jurisdiction to judicially review acts ordecisions of the other branches of government, the Courts must, of course,respect the powers and functions conferred on the Executive and Parliament bythe Constitution and by law…”

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Mallakv Minister for Justice [2012]

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“Atits heart, [Judicial Review] insists that…any administrative decision…must bebona fide held and factually sustainable and not unreasonable. The underlyingprinciples of judicial review are universal … the underlying fundamentalpresumption of which being that those to whom discretionary powers areentrusted will exercise them fairly insofar as they may affect individuals.Where fairness can be shown to be lacking, the law provides a remedy…”

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Discretionary remedy

State(Abenglen Properties Ltd) v Dublin Corp [1984]

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O’HigginsCJ

“…a person whose legal rightshave been infringed may be awarded [relief]…but the court retains discretion torefuse his application if his conduct has been such as to disentitle him to therelief.”

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Decision Making Only Challenged. Not Merits ofDecision

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Judicialreviews are a challenge to the way in which a decision has been made rather than to the actual, final decision. Judicial review is not concernedwith whether a decision is good or bad (“the merits”) but with ensuring thatthe correct procedures were followed by the decision maker leading up to makingthe decision.

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Rawsonv Minister for Defence [2012]

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ClarkeJ

“Itis trite law to say that judicial review is concerned with the lawfulness ofdecision making in the public field. Where a decision is made by a publicperson or body which has the force of law and which affects the rights andobligations of an individual, then it hardly needs to be said that the courtshave jurisdiction to consider whether the decision concerned is lawful.

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4 principles

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First, the decision must be within the power of the person or body concerned.

Second, the process leading to the decision must comply with both fair procedures and with whatever procedural rules may be laid down by law for the making of the decision concerned.

Third, the decision maker must address the correct question or questions that need to be answered in order to exercise the relevant power...[I]n doing so, [they] must have regard to any necessary factors properly taken into account and must also exclude any considerations not permitted.

Fourth, in answering the proper questions raised and in assessing all questions properly taken into account, the decision maker must come to a rational decision…”,"seriW\B/

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The distinction between Public and Private Bodies

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JudicialReview is available as a weapon against Public Bodies only. Therefore, it is very importantto know whether the decision-making body is a Public or Private one.

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TraditionalApproach: “Source of Power” Test

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Traditionally,when assessing whether JR was available as a remedy, the courts examined therelationship between the applicant and the decision-making body to identify thesource of the decision-maker’s power. If the applicant had voluntarilysubmitted to the authority of the decision maker (for example, by entering acontract with it), then the source of the decision-maker’s power was a matterof private contract and public law remedies such as JR were not available.

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State(Colquhoun) v D’Arcy [1936]

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Here it was found that a decision of the Court ofthe General Synod of the Church of Ireland to disciplinea minister was NOT subject to JR as that court derived its authority from theconsent or agreement of the Church members rather than from Statute orlegislation. The

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High Court found that JR would only issue against a court, tribunal or body of persons that:

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i. Had a duty to act judicially;

ii.Had authority to impose liabilities or to determinequestions which affected the rights of individuals, and

iii. Derived authorityfrom Statute or Common Law.

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Murphy v Turf Club [1989]

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Applicantwas a racehorse trainer seeking to review a decision by the horse racinggoverning body to revoke his training licence. The decision effectivelyterminated his ability to earn a livelihood. The High Court found that therelationship between the applicant and the Turf Club derived solely from contractand that the respondent’s duty to regulate the sport of horse racing in Ireland,although it had a public dimension, was not a public duty. The applicant hadsubmitted voluntarily to the Turf Club’s jurisdiction. Therefore, it was aprivate matter and the decision could not be JR’d.

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“PublicElement” Test

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Thecourts now look at the nature or type of power being exercised andwhether there is a public element to this power.

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Beirne v Garda Commissioner [1993]

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Applicantwas a trainee Garda whose appointment was terminated because of allegedmisconduct. The Garda Commissioner argued that the right to terminate theappointment of the trainee Garda was based solely on private contract. Therefore, since the decision was a privatematter, it could not be subject to judicial review.

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FinlayCJ held

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“The principle which, in general, excludes from the ambit of judicial review decisions made in the realm of private law by persons or tribunals whose authority derives from contract is…confined to cases…where the duty being performed by the decision-making authority is manifestly a private duty and where his right to make it derives solely from consent or the agreement of the parties affected.

“Where the duty being carried out by a decision-making authority, as occurs in this case, is of a nature which might ordinarily be seen as coming within the public domain, that decision can only excluded from the reach of the jurisdiction in judicial review if it can be shown that it solely and exclusively derived from an individual contract made in private law.”

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Meaning

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Even though the GardaCommissioner’s power to discipline and dismiss the applicant came fromcontract, it was clear that the power also came from the public office that the Commissioner held and the statutorypowers attached to it. Even though, there was a strong contractualelement to the relationship, judicial review was available due to this publicelement.

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Bane v Garda Representative Association [1997]

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Thiscase related to decisions to expel a Garda from the force for alleged misconduct.Kelly J held that these were decisions which were ordinarily seen as comingwithin the public domain and were not exclusively derived from an individual contractmade in private law. Accordingly, they were within the jurisdiction of judicialreview.

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The “Geoghegan Principles”.

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Thequestion remained whether the “Public Element” test was applied only in limitedcircumstances or whether it had broader application to other types of situation.

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Geoghegan v Instituteof Chartered Accountants in Ireland [1995]

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ThisSupreme Court judgment identified a list of factors which help to show whetheror not a decision has a public element. The applicant was an accountant. He hadsought to restrain disciplinary proceedings being taken against him by theInstitute.

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DenhamJ

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“In view of the public nature ofthe source of the Institute, the functions of the Institute and the nature ofthe contract between the Appellant and the Institute, the subject of judicialreview part of the question…There are a number of important factors:

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Factors

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1. Thecase relates to a major profession, important in the community, with a special connection to the judicialorgan of Government in the courts in areas such as receivership,liquidation, examinership as well as having special auditing responsibilities;2. Theoriginal source of the powers of theInstitute is the Charter: through that and legislation…, the Institute had anexus with two branches of …State (executive and legislature);3. Thefunctions of the Institute and itsmembers come within the public domain of the State;

4. Themethod by which the contractual nature of the relationship between theInstitute and the applicant was created is an important factor as it was necessary for the individual to agreein a [standard] “form” agreement to the disciplinary process in order togain entrance to membership of the Institute.

5. Theconsequences of the domestic tribunal’s decision may be very serious for amember.”

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Browne v DundalkUDC [1993]

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[rescission of a contract for thehiring of a town hall for the Sinn Fein party’s annual conference]. Althoughgrounded in contract and so prima facie outside realm of judicial review,Barron J was satisfied that there was a crucial element to the transaction thatbrought it into the realm of public law, namely the fact that a Council Resolution had been passed thatthe booking should be cancelled. This Resolution had, in turn, been passed onpolitical grounds.

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Rafferty v Bus Eireann [1997]

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Inthis case, the applicants were seeking to judicially review changed in theirterms and conditions of employment following a re-organisation of CIE made bystatute (legislation). Kelly J that, while the Geoghegan case was dealing withan entirely different situation, a number of factors identified by Denham Jwere relevant:

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Factors Listed

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1) Thiscase relates to a major method of public transport and to persons employed inthat operation. Public transport is important to the community. Disputesconcerning persons employed therein which might give rise to industrial actionhave consequences of hardship, particularly for members of the community whoare entirely dependent on it.2) Theoriginal provider of the service now being given by Bus Eireann was the [State]company CIE. Irish Bus itself owes it existence to the [Transport Act 1986].

3) Thefunctions of Irish Bus and its employees came within the public domain of theState.

4) Themethod, by which the contractual relationship between Irish Bus and itsemployees is regulated is subject to [statute].5) Theconsequences of an unlawful interference with the contractual rights of IrishBus’s employees may be very serious for them.

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O’Donnell v Tipperary (South Riding) County Council[2005]

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Applicanthad been dismissed from his position in a Fire Station. The Supreme Court foundthat JR was an appropriate remedy. Denham J noted that where the organisationbeing challenged was a public authority, the burden rested on them to show thatthe power to dismiss was governed solely by private contract.

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Rajah v Royal College of Surgeons in Ireland [1994]

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[decision refusing studentpermission to resit exams which she had failed twice before – Keane J concludedthat the jurisdiction of the appeals committee of the respondent derived notfrom public law but solely from the applicant’s agreement to be bound by theregulations of the college. He added that the applicant was in the sameposition as a student in any other third level institution and the fact thatthe college derived its existence in law from a charter or act of parliamentwas not a sufficient ground for bringing matter relating to the conduct andacademic standing of its students within the ambit of judicial review]. UnlikeGeoghegan, this case related to a student institution rather than aprofessional practice Institution.

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Quinn v King’s Inns [2004]

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[decision refusing applicantadmission as a candidate for the degree course of barrister at law – Smyth Jheld that this was not amenable to judicial review on the basis that theapplicant was not entitled to invoke a public law remedy for a private lawright. The applicant’s rights were determined by contract and the matter wasessentially private relating to the rights of the student with respect to therespondent. The fact that the respondent’s powers might initially derive from acharter was only indirectly relevant to consideration of the case – it wasnecessary to consider the nature of the power as well as the source]. UnlikeGeoghegan, this case related to a student institution rather than aprofessional practice Institution.

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PublicBodies exercising Private Functions

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merely because a public body isamenable to judicial review in some circumstances does not mean that every act or function which it carriesout is necessarily subject to review, e.g. where the authority is acting in amanner akin to that of a private institution.

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ealy v Fingal CountyCouncil (Unreported, High Court, Barr J, 17th January1997).

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This case related to whether therespondent council was entitled to set off monies payable to the applicantcouncillor as expenses against a sum owed by him in costs to the councilfollowing unsuccessful legal proceedings. Barr J concluded that there was no public dimension to the proceedings.

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The DistinctionBetween Administrative Decision and Policy

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It would be a serious breach of the Separation of Powers Principle if the courts were to overturn or interfere with every decision of the Government. Certain matters, for example, monetary policy or foreign policy, are for the Government to decide, not the judiciary. This is important because, while the superior courts are willing to judicially review administrative decisions, they are far less willing to judicially review what they consider to be a “Policy”.

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TDv Minister for Education [2001]

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In this case, the Supreme Courtheld that it did not have any power to force the Government to implement aparticular Policy as this was amatter for the Executive (government) and to do so would be a breach of theSeparation of Powers. This approach is based on theidea that elected persons or bodies take Policydecisions, whilst administrative tribunals or bodies customarily take Administrative Decisions. It is theselatter Administrative Decisions that are far more likely to be JudiciallyReviewed.

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McKennav An Taoiseach (No 2) [1995]

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Inthis case, the Supreme Court held that the decision of the Government to usepublic funds to promote, in a one-sided manner, a particular outcome to thereferendum was unconstitutional.

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HamiltonCJ

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“Neither the powers of theOireachtas nor of the Government are absolute even within their own domain. TheOireachtas is inhibited from enacting any law which is any respect repugnant tothe Constitution or any provision thereof and the exercise by the Government ofthe executive power of the State issubject to the provisions of the Constitution. They are both creatures ofthe Constitution and are not empowered to act free from the restraints of theConstitution. There are boundaries to their areas of activity and function…Consequently,it is the right and duty of the Court toexamine, and if necessary to review the activities of the Government toascertain whether its activities are within its permitted areas of activity andfunction and whether the constitutional rights of the litigant are beinginvaded by such activity.”

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Rooneyv Minister for Agriculture and Food [1991]

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Supreme Court held that it had nopower to compel a Minister to make regulations in the absence of mala fides orabuse of power.