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GAZETTE
JUNE 1992
The Obligation to Give Reasons
for Administrative Decisions
Part I
By Maurice Collins BL
For some time there has been a
paradox of considerable significance
at the heart of Irish administrative
law. On the one hand, the Irish
courts have long asserted and
exercised the right to quash
administrative decisions, inter alia,
on the grounds that irrelevant
matters were taken into consideration
or that there had been a failure to
consider relevant matters. On the
other hand, the decision-making
process remained opaque because the
courts did not insist that the
decision-makers gave reasons for the
decisions they made.
1
Thus a theoretically valuable
protection was in practice rendered ,
less useful and, not infrequently,
applications for judicial review failed
to establish invalidity in the face of
the decision-makers' silence. In the
last decade, judicial attitudes have
changed generally and in particular
with regard to the obligation to give
reasons.
2
That such an obligation
exists can no longer be doubted,
though its scope remains unclear.
3
Uncertainty surrounds the extent of
the obligation, i.e. what level of
explanation the obligation involves
and also what are the consequences
of failure to give reasons. The
purpose of this article is to examine
these uncertainties and to suggest
answers to some of them.
General principles
Until recently, the Irish courts have
refused to recognise any general
obligation to give reasons, a position
mirroring that still current in the
United Kingdom. In the decided
English cases, a number of grounds
have been advanced in support of
Maurice Collins
this position including the fact that
the decision complained of was
grounded on a purely subjective
opinion,
4
that what the applicant
was seeking was a privilege not a
right,
5
that giving reasons would be
contrary to the public interest,
6
or
that there was no right of appeal.
7
However, it would be wrong to
suggest that even in English law, the
failure/refusal to give reasons could
never lead to the quashing of a
decision. The House of Lords in
Padfield
-v-
The Minister of
Agriculture
(1968) quashed a
decision of the defendant, who had
failed to give an explanation for
deciding as he did, stating:
" If he does not give any reason for
his decision, it may be, if circumstances
warrant it, that a court may be at liberty
to come to the conclusion that he had
no good reason for reaching that
conclusion and directing a perogative
order to issue accordingly".
8
The logic of this judgment (if not
the judgment itself, which was not
cited) was accepted here by Barron
J. in
State (Daly)
-v-
Minister
for
Agriculture
(1987) where the same
inference of no reason/bad reason
was made in the face of the
respondent's silence when his
exercise of statutory power to
terminate the prosecutor's services
was challenged:
". . .once his decision was challenged,
he was obliged to disclose to the
prosecutor the material on which he
acted and his reasons for so doing, the
Minister has failed to show that he acted
intra vires".
9
Broader principles were established
in
State (Creedon)
-v-
Criminal
Injuries Compensation
Tribunal
(1988), where the respondent's
unexplained refusal to award an 'ex
gratia' payment to the prosecutor
under a non-statutory scheme was
challenged.
Quashing the refusal, the Supreme
Court per Finlay CJ stated:
"Once the courts have a jurisdiction
and if that jurisdiction is invoked, an
obligation to enquire into and, if
necessary, correct the decisions and
activities of a tribunal of this
description, it would appear necessary
for the proper carrying out of that
jurisdiction that the courts should be
able to ascertain the reasons by which
the tribunal came to its determination.
Apart from that, I am satisfied that the
requirement which applies to this
tribunal, as it would to a court, that
justice should appear to be done,
necessitates that the unsuccessful
applicant before it should be made aware
in general and broad terms of the
grounds on which he or she has failed.
Merely, as was done in this case, to
reject the application and when that
rejection was challenged subsequently to
maintain a silence as to the reason for it,
does not appear to me to be consistent
with the proper administration of
functions which are of a quasi-judicial
nature."
10
Both
Daly
and
Creedon
were opened
to the High Court in
International
Fishing Vessels Ltd.
-v-
Minister
for
the Marine
(1989) and, in a
comprehensive judgment, the
principles of law contained in them
were approved and expanded. The
action concerned the refusal of a sea
fishing boat licence under section
222 (b) of the Fisheries
(Amendment) Act, 1959 (as inserted
by section 2 of the Fisheries
(Amendment) Act, 1983) for which
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