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GAZETTE
JUNE 1992
conditions, the reason for the
imposition of the conditions)."
20
Of
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)
21
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
22
in the United
Kingdom since 1958
23
and in
Australia (again in respect of federal
agencies) since 1975
24
. The only
generally applicable statutory
provision in Ireland relating to
reasons is section 6
3
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,
25
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
in
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.
26
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
1
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"
27
.
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.''
28
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.
29
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.
30
This rationale
is entirely consistent with, and
vindicative of, the important role of
"the people" in Irish constitutional
law
31
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.
n
It is clear from the decided cases
that, as far as the common law is
197