The Gazette 1992

GAZETTE

JUNE 1992

no reasons were given, despite a

written request from the applicant's

solicitor. Blayney J rejected the

respondent's contention that the

decision to grant a licence was purely

discretionary

and went on to hold

that the duty to act fairly and

judicially necessarily involved an

obligation to give reasons. Once the

decision was reviewable, a refusal to

give reasons:

"deprives the applicant of the material

it needs in order to be able to form a

view as to whether grounds exist on

which the Minister's decision might be

quashed. As a result, the applicant is at

a great disadvantage, firstly, in reaching

a decision as to whether to challenge the

Minister's decision or not, and, secondly,

if he does decide to challenge it, in

actually doing so, since the absence of

reasons would make it very much more

difficult to succeed."

Furthermore, Blayney J held that,

the flaw in the application might be

remediable but, if kept in ignorance

of what that flaw was, the applicant

would not be in a position to mend

its hand and reapply.

The duty to give reasons has recently

been judicially extended into areas

where it previously had been denied,

albeit in quite particular

circumstances. Thus in

Fajujonu

-v-

Minister for Justice,

(1990), the

Supreme Court held that the

defendant could exercise his powers

of deportation against the plaintiffs

(who were illegal aliens but who

were members of an Article 41

family, the children of which were

Irish citizens) only "for good and

sufficient reasons" (per Finlay CJ)

or if "satisfied for stated reasons"

that the common good required it

(per Walsh J).

The approach in

Fajujonu

contrasts strongly with the

High Court decision of Costello J in

Pok Sun Shum

-v-

Ireland,

(1986),

where it was held that the powers of

the State to control immigration,

being exercised once again against an

alien who was part of an Article 41

family, were unfettered by a duty to

give reasons.

The status of

Pok

Sun Shum

in the light of

Daly,

Creedon

and

International

Fishing

Vessels Ltd.,

and particularly in the

light of

Fajujonu,

must now be

considered suspect.

Similarly, it would appear that the

general statement of law to the effect

that the non-renewal of a prisoner's

temporary release (as opposed to the

revocation of a current release) does

not attract the rules of natural justice

and 'ipso facto' does not require the

giving of reasons, which is to be

found in the High Court judgment

of Murphy J in

Ryan

-v-

The

Governor of Limerick

Prison,

(1988),

is too broad. In a

subsequent decision of the High

Court,

Sherlock

-v-

Governor of

Mountjoy

Prison,

(1990) (in which,

unfortunately,

Ryan

does not appear

to have been cited) Johnson J held

that where a large number of

continuous temporary releases,

spanning a period in excess of 12

years, had been granted to the

applicant, he had acquired a

"legitimate expectation" that either

his release would be renewed or, if

not, that reasons for the non-renewal

would be furnished to him, to which

he could then respond.

In this

respect, the High Court was

following the judgment of the

Supreme Court in The

State

(Murphy)

-v-

Kielt,

(1984) and it may

be that the point really at issue was

the right to a hearing

before

the

decision not to renew was made

rather than (or as well as) the right

to be told the reasons for the non-

renewal. In either event, the decision

represents a step forward from

Ryan

which, it is submitted, places too

much emphasis on the application/

forfeiture (or, put another way,

privilege/right) distinction that it is of

such great importance in English

administrative law.

It is not being

suggested, however, that there do not

still remain areas of administrative

decision-making on which the courts

will not impose a duty to give

reasons. Certainly, it would appear

from the case law to date that only

in very limited circumstances, if at

all, would the Director of Public

Prosecutions be obliged to give

reasons for his decisions.

Statutory duty to give reasons

It should be noted that, quite apart

from the common law, a duty to give

reasons may be imposed by Statute

or by Statutory Instrument.

Numerous examples may be given of

which the most recent are section 14

of the Competition Act, 1991 (under

which the Minister for Industry and

Commerce shall state reasons for the

making of orders dealing with the

abuse of dominant positions) and

section 4(a)

of the Health (Nursing

Homes) Act, 1991 (which requires a

Health Board proposing to make

decisions adverse to an applicant to

give reasons for its proposed decision

and to take into account any

representations made in response).

Contra

the application/ forfeiture

distinction manifested in

Ryan,

the

requirement in respect of nursing

homes applies equally to refusals of

initial application for registration and

to revocations of existing

registrations. Another example of a

statutory duty in this regard is the

Trade Mark Rules, 1963 (see Rule 43

which refers to "grounds of a

decision") which rules were

considered and applied by Barron J

Anheuser Busch Inc.

-v-

The

Controller of Patents, Designs and

Trade Marks,

(1987). Enforcement

notices under section 10 and

prohibition notices under section 11

of the Data Protection Act, 1988

must state reasons and grounds,

respectively, and reasons must also be

given for prohibition notices under

section 37 of the Safety, Health and

Welfare at Work Act, 1989.

It would appear to be the clear policy

of the Oireachtas that administrative

notices, to have immediate legal

effect (even though appealable),

should be accompanied by an

explanation for their issue and an

outline of the complaint being made.

In practical terms, perhaps the most

important of the statutory provisions

is that in the planning code,

specifically section 26

(a) of the

Local Government (Planning and

Development) Act, 1963,

supplemented in respect of An Bord

Pleanála by Article 48 of the Local

Government (Planning and

Development) Regulations, 1977. (S.I.

No. 65)/1977). In respect of decisions

on appeal, Article 48 requires that all

notifications of appeal decisions be

accompanied by "a statement of the

reasons for the decision (including in

the case of any decision to grant

permission or approval subject to

196