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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
11
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."
12
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).
13
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.
14
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),
15
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.
16
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.
17
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.
18
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
4
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)
13
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
in
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
8
(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