The Gazette 1992

GAZETTE

JUNE 1992

conditions, the reason for the

imposition of the conditions)."

course, in cases to which these

provisions apply, as with the other

statutory provisions mentioned above,

the existence of the duty to give

reasons cannot be doubted and the

common law principles are relevant

"only as to a consideration of the

reasons why the statutory obligation

exists", as has been authoritatively

stated by the Supreme Court in

O'Keefe

-v-

An Bord

Pleanala,

(1991)

Therefore, when a statutory

obligation is at issue, the terms of the

statute or regulation must first be

considered. The extent of the

obligation imposed by the planning

code in relation to appeals was a

crucial issue in

O'Keefe

and is

considered below.

Finally, it should be noted that

Ireland is one of the few common

law jurisdictions not to have created

$ general right to be given reasons

for administrative decisions. Such a

right has existed in the United States

in relation to federal administrative

agencies since 1945

in the United

Kingdom since 1958

and in

Australia (again in respect of federal

agencies) since 1975

. The only

generally applicable statutory

provision in Ireland relating to

reasons is section 6

of The

Ombudsman Act, 1980, which, inter

alia, confers on the Ombudsman the

power to recommend that reasons be

given by an agency for any decision

he has investigated. This is of course

a long way from the statutory

provisions mentioned above.

" Ireland is one of the few

common law jurisdictions not to

have created a general right to

be given reasons for

administrative decisions."

When the obligation arises

As has been pointed out by Hogan

and Morgan,

most of the reported

cases suggest that the obligation to

give reasons arises only if and when

a decision complained of is

challenged, whether by way of appeal

or by judicial review. The facilitation

of appeals has been proffered as a

rationale for imposing the obligation

to give reasons in

Daly,

Creedon,

International

Fishing Vessels Ltd.

and

Anheuser Busch Inc.

(where the

appeal was unusual in that it was by

way of full re-hearing). This emphasis

on compelling reasons to be given so

that courts may correct the errors of

inferior tribunals has also been

accepted in other jurisdictions and by

academic writers.

It clearly is an

important element of the obligation

but equally clearly is not the only

element and on its own, it is

submitted, represents a far too

limited approach.

Firstly, it would appear perverse to

require a complainant to issue

proceedings challenging a decision in

order to be furnished with reasons

for the decision, when such reasons

may well satisfy him that the decision

was properly taken. This point was

recognised by Blayney J in

International

Fishing Vessels

and is

well put in a 1983 Australian

decision.

"[Section 13

of the Administrative

Decisions (Judicial Review) Act] requires

the decision-maker to explain his decision

in a way which will enable a person

aggrieved to say in effect "even though I

may not agree with it, I now understand

why the decision went against me. I am

now in a position to decide whether that

decision has involved an unwarranted

finding of fact or an error of law, which

is worth challenging"

Secondly, and more fundamentally,

the strict facilitation of appeals/rule

of law approach fails to recognise the

right of the citizen to know why an

adverse decision has been made. The

argument for a more generally based

right to reasons focuses on the

reaction of the "consumer" of the

decision and stresses the importance

of fairness and comprehension. This

approach is discernible in

Creedon

and in the judgment of the Supreme

Court in

Breen

-v-

The Minister

for

Defence,

(1990), in which the court

unanimously held that the respondent

had failed to properly consider the

effect of a damages award on the

applicant's army pension. Having

criticised the Minister for failing to

explain his assessment, O'Flaherty J

went on:

"I am far from saying that every

administrative decision must be

accompanied by elaborate reasons such as

would be appropriate to a judgment but

the citizen's sense of resentment and

frustration can be readily understood in

circumstances where he has presented

what he thinks is a viable case and has

been met simply by a blanket refusal to

change by the adminstrative

decision-maker.''

A similar point was made in the

High Court by Murphy J in

O'Donoghue

-v-

An Bord

Pleanala,

(1991) where he stated:

"It is clear that the reason furnished by

the Board (or any other tribunal) must be

sufficient, first, to enable the courts to

review it and, secondly, to satisfy the

persons having recourse to the tribunal

that it has directed its mind adequately to

the issue before it.

This second rationale places a value

on allowing the user of

administration to discover where he

went wrong and to modify his

position accordingly - in short, it

encourages active participation in the

administrative structure rather than

merely passive acceptance of

administrative decisions, whether

positive or negative.

This rationale

is entirely consistent with, and

vindicative of, the important role of

"the people" in Irish constitutional

law

and with the role of the

administrative and judicial systems in

seeing not just that justice is done

but is also

seen

to be done.

Recent Irish decisions accepting the

obligation to give reasons are also

supported by reference to the

discipline imposed thereby on

decision-makers. The obligation to

give reasons structures the exercise of

discretion, compelling administrators

to consider both parties' points of

view and to weigh one up against the

other in a considered fashion. This

was the rationale for the Supreme

Court's requirement for reasons to be

given in

Fajujonu.

It is clear from the decided cases

that, as far as the common law is

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