Administrative

Fair Procedures The right to fair procedures in public decision making is accepted internationally as a basic principle of justice.  The European Convention on Human Rights provides that in the determination of a person’s civil rights, he is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. The concept is reflected in the United States, in the wide-ranging constitutional “due process” requirement. The right to fair procedures in decision making by public bodies is recognised as of such fundamental importance, that it is now firmly recognised as a Constitutionally protected right; so-called constitutional justice. Prior to recognition of under the Constitution, the concept of “natural justice” expressed basic principles of fair procedures. The basic elements of natural justice, are that the decision maker should be independent, impartial and unbiased and that each party should be entitled to put his case to the decision maker.… Read the rest

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Administrative law Public authorities are generally conferred with powers and duties in relation to their particular areas of competence.  The powers and duties will be usually conferred by the legislation which establishes the body concerned.  The legislation will commonly set out the body’s objectives or purpose, with more or less detail of its powers. The scope of a public body’s s functions, powers and duties is a matter of interpretation by the courts, in the event of a dispute. The legislation may be interpreted as conferring a duty on the public body, with a corresponding right for citizens or certain classes of citizens. In other cases, apparently similar legislation may be interpreted as providing a discretionary power only, without a corresponding right.  The exercise of a discretionary power may create a legitimate expectation. The court’s interpretation may depend on the statutory context and on the subject matter.  In some cases, public authorities are given very wide responsibilities,  for example in the area of education, housing, and policing.… Read the rest

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Discretionary Powers Many governmental and public bodies’ functions and powers involve the exercise of discretion.  Commonly, the departments and bodies are given broad powers and responsibilities, particularly in areas such as health, education and housing. The implementation of policies in such areas may involve the exercise of discretion at numerous levels. The legislation is commonly in terms that the Minister or body, may do such and such or may, if he or it of an opinion as to a particular matter, may do such and such. As in other areas of public law, the courts do not wish to second-guess the public body.  Departments and public bodies are generally experts in the particular area. In other instances, they are directly or indirectly answerable to elected representatives, who are politically accountable to the people. There are inevitable constraints on resources. Although legal powers in legislation may be worded in apparently broad subjective terms, their interpretation, driven by the context and statutory setting and Constitutional considerations will usually require that the powers be exercised for a particular purpose and within particular bounds.… Read the rest

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Legitimate Expectations and Public Bodies The principle of legitimate expectations may apply to public bodies.  The principle protects the legitimate expectations of citizens against arbitrary and unexpected changes in administrative procedure and practice. The legitimate expectations principle may require public bodies to abide by commitments, practice and procedure in certain circumstances.  The principle has become more firmly established in the last twenty years. The principle of legitimate expectations may apply where a public body leads a person to believe that a particular state of affairs will continue and that person acts to his determent in reliance on the representation. Where it would be unjust to allow the representation to be withdrawn, at least without mitigating the detriment incurred in reasonable reliance on it, the public body may be estopped from withdrawing its representation to the extent necessary so that no injustice is caused. The principles may apply where a public authority has made a statement or adopted a position, made a promise or representation, express or implied, as to how it will act in a particular area. … Read the rest

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Administrative Law Administrative law is the law relating to government and local authorities, semi-state and other governmental bodies. It deals with the relationship between members of the public and the governmental bodies. A fundamental principle of the Irish Constitution is that the government and its agents are subject to the law.  Formerly, the State enjoyed certain immunities. Most of these have been found to be unconstitutional. Administrative rules themselves are found in statutes, statutory instruments and administrative practice as reflected in circulars and other statements of practice. The extent to which the government and state bodies have discretion depends on the particular rules and the subject matter, with which it deals. In some cases, there will be no scope for discretion and the legislation may provide clear right and entitlements for citizens. In other cases, the position will be more open. Administrative law, in the sense of the manner in which courts deal with disputes between individuals and the State, is profoundly affected by and subject to the Constitution, the  European Convention on Human Rights as well as common law principles shared with the UK.… Read the rest

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Office of Ombudsman The Ombudsman’s office was established in 1980, in order to offer redress to persons who have suffered loss or harm, due to “maladministration”.  It offers the possibility of redress without the expense of court action and with the need to show identify illegality in administrative action. Apart from the time, cost and risk involved a Judicial review challenges will not succeed on the basis of maladministration alone.Judicial review does not look at the merits of a decision, but rather its legality. It will not second guess the decision, unless it is so flawed, as to be outside the decision maker’s powers. Traditionally, members of the public have directed complaints about the administration through their elected representatives.  They did and continue, to a very large extent, to  use the moral authority of their representative to remedy grievances in relation to government services. The Ombudsman is constituted so as to be independent of government.… Read the rest

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Administrative Decisions The procedures for particular administrative decisions are usually laid down in legislation, whether an Act of the Oireachtas or a Statutory Instrument  made under a delegated power. It may be laid down or expounded in guidelines, circulars and other administrative practice. The rules in relation to the particular matter may be detailed and precise with little discretion for the administrator. In other cases, the administrator may have a considerable degree of discretion. The Freedom of Information Act obliges public bodies to prepare a reference book in order to assist members of the public. It must contain a description of their organisation, functions and powers and the procedures by which their services may be availed of, by the public. The information must include details of the right of review or appeal of the body’s decisions. It must set out other information, which the relevant department head considers relevant. Government departments and administrative bodies are obliged to take appropriate measures to train staff to ensure compliance with Freedom of Information Act. … Read the rest

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Discretionary Powers and Controls In many cases, governmental bodies’ powers are expressed in very broad discretionary terms.  Literally read, the relevant powers seem to give the Minister, department or body concerned a discretion whether to, for example, grant a particular licence or take a particular step. However many powers which appear to give complete discretion to the administration are in fact circumscribed by principles of justice and reasonableness.  Powers must not be used unreasonably or for an irrelevant purpose. The exercise of powers by administrative bodies can’t be challenged on the basis that the Court would come to a different decision. However, if the power is exercised in bad faith, dishonestly or unreasonably having regard to irrelevant circumstances or disregarding the underlying legislation policy it may be challenged as unlawful.   Reasonable Basis for Decisions Broadly speaking legal challenges to administrative decisions may be based on illegality, irrationality procedural impropriety, violation of fundamental rights, lack of proportionality.The… Read the rest

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Compensation and the State On an application for judicial review of an administrative decision, a claim for compensation may be made.  If the applicant would have succeeded in a civil claim against the authority, damages may be awarded.  Proceedings for compensation can be brought separately in some cases. The State does not enjoy general immunity from being sued for civil wrongs.  Formerly there were certain restrictions on suing the State, but these were found to be unconstitutional.  These former special immunities that once existed for public bodies from being sued have been removed. If a particular course of action that would otherwise be a civil wrong is required by legislation, e.g. undertaking certain works then if the inevitable consequence is that it causes loss or damage, then the authority generally is not liable provided the acts is not done negligently. Therefore, for example, what might otherwise be a nuisance would be generally immune from a claim for compensation on this principle.… Read the rest

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General Judicial review is a High Court procedure in which the legality of acts of public and administrative bodies may be challenged and found invalid.  The focus is not on the merits of a decision, but on its legality. Judicial review may be undertaken in relation to the acts and decisions of the so-called lower courts; the District and Circuit Court and also and more commonly, that of Governmental and administrative bodies. Judicial review challenges the decisions of public law.  It deals with questions affecting the rights of individuals and citizens.  The decision of the public body must impact upon the property, good name or rights of the citizen. There is a duty to act “judicially”, where the exercise of the power affects rights or imposes liabilities on individuals. There are a number of types of orders that the High Court may grant in a judicial review application. It may grant orders declaring the invalidity of decisions, quashing decisions made without legal authority, compelling public authorities to take certain action and granting compensation for unlawful administrative action.… Read the rest

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