258 / 462
GAZETTE
JULY/AUGUST 1992
is also consistent insofar as a
separate ground for decision was the
irrationality of the refusal of
compensation.
"Bad reasons" were at issue in
International
Fishing Vessels Ltd.
-v-
The Minister for the Marine
(No. 2)
(1991), a Supreme Court sequel to
the decision of Blayney J already
mentioned. As a consequence of that
decision, the respondent had
provided the applicant with a
detailed list of the reasons for his
decision. Amongst the reasons given
were allegations of misconduct that
had never been drawn to the
attention of the applicant, in clear
breach of the
audi alteram
partem
rule. The applicant sought judicial
review of the decision as having been
reached in breach of natural and/or
constitutional justice. On appeal to
the Supreme Court on the dismissal
of its application in the High Court
by Gannon J, the applicant was
again unsuccessful. The applicant's
right to fair procedures was accepted
by the Court as it had to be and
ultimately the issue on appeal was
whether or not the bad reasons
could be severed from the good or in
some other way be ignored. The
court, per McCarthy J (Hederman J
concurring) stated the problem
thus:
" If the Minister intends to take
into consideration the variety of
different factors in making his
decision, he must notify the person...
of each of the matters; if he fails to
notify the applicant of a matter
which, on its own, causes him to
make his decision, then his decision
must be quashed. If, however, there
are valid reasons for his decision
based upon matters of which he has
notified the applicants and given them
ample opportunity to make
representations, the fact that there are
other reasons of which he has not
given them notice, does not, in my
view, invalidate his decision."
55
This decision represents an
acceptance of the need for
inadequate reasons themselves to
manifest a quashable error of law
and an implicit rejection of the
"error approach". In
International
Fishing Vessels Ltd.,
the Supreme
court seemed to have disregarded the
breaches of the audi alteram partem
rule as being
de
minimis
(particularly O'Flaherty J). However,
it is submitted that the statement of
principle made by McCarthy J may
be over-broad. If the only
circumstances in which a " b a d " i.e.
legally irrelevant, reason can
invalidate a decision is where it is
one which "on its own causes the
decision-maker to make his
decision", then as long as one or
more good reasons are relied on, any
number of bad reasons can be
legitimately taken into account by
the decision-maker. Indeed, on the
face of it, these bad reasons may in
fact be the primary reasons for the
decision, as long as none is
on its
own
the reason for the decision. This
would appear to be contrary to the
strict line taken where irrelevant
considerations are taken into account
by a decision maker, as exemplified
by the Supreme Court decision in
Flanagan
-v-
Galway City and
County Manager
(1990).
56
Of course, it will at all times be
open to an applicant to argue that
the " good" reasons cumulatively do
not justify the decision and the
decision therefore is "irrational".
However, this is an extremely
onerous task and it would appear
that a court will not quash a
decision for irrationality where there
are
any
valid reasons for the taking
of the decision.
57
International
Fishing Vessels
is therefore
something of a paradox. Having
succeeded in obliging the Minister to
give his reasons and having
succeeded in exposing an error of
law in these reasons, the applicant's
position was ultimately not
improved. The value of obtaining
reasons for adverse decisions remains
significant, however. If the reasons
given by the Minister had rested on
factual allegations disputed by the
applicant, they could have been
challenged on that ground.
Moreover, in general, it appears that
where a " b a d " reason is stated by a
decision-maker, the fact that the
decision
could
have been taken for
good reasons will be irrelevant,
unless those reasons were stated at
the time of the giving of reasons for
the decision.
58
Conclusion
The emergence of a general
obligation to give reasons for
adminstrative decisions is to be
welcomed. Such an obligation
enables the effective application of
the long standing rules on the
exercise of administrative discretion.
This is one of the major reasons for
imposing the obligation. Other
reasons include the entitlement of
the public, insofar as they are the
subjects of administrative action, to
understand the reasons for making
certain administrative decisions that
may adversely affect them. The
requirement to give reasons for
decisions ought also to contribute to
more rational decision-making by
tribunals and help to avoid
ultra
vires
decision-making. It is to be
hoped that it will not be necessary
to take judicial review proceedings in
order to obtain reasons - reasons
should be stated either at the time of
the making of the decision or upon
subsequent reasonably prompt
request. The level of detail required
may vary from situation to situation
and the flexibility of the common
law is advantageous in this regard.
Questions remain to be answered
and issues resolved, as indicated
above, but the developing
jurisprudence of the Courts should
deal with these issues.
" I t is to be hoped that it will not
be necessary to take judicial
review proceedings in order to
obtain reasons - reasons should
be stated either at the time of the
mak i ng of the decision or upon
subsequent reasonably prompt
request."
The giving of reasons may initially
lead to a greater level of challenge to
administrative decisions but with the
improvement in decision-making and
decision-explaining, which reasons
may be expected to bring about,
together with a realistic attitude to
the statement of reasons (which
"should not be parsed as if it were a
statute"
59
) this should be a short
(Continued
on page 240)
234