The public service makes decisions which affect the rights an interests of individuals across a whole host of areas on a daily basis. In some cases, there are elements of discretion in relation to the exercise of the power. More generally the rights of entitlement of individuals are fixed by law.
There exist mechanisms for challenging the decisions of public bodies. These include Court challenge of decisions by way of public review (which may be expensive) and appeals.
A Court challenge does not look at the merits of the decision. Instead, it looks at whether the decision is legal. Generally, a decision will not be found invalid unless it is so unreasonable as to be ordinary outside the powers of the decision maker.
In recent decades, many public bodies have adopted internal complaints and review system. Many agencies have published charters of the rights of members of the public, which allow internal review by independent officers in the department or body and in some cases an external appeal.
There are several public bodies which represent public interest including the Competiton and Consumer Protection Commission, the Workplace Relations Commission, the ODCE and various Ombudsman bodies.
In one sense the minister is responsible for the department through the Oireachtas. Constituents can request their TDs to raise questions of the minister. Considerable time is given over to the answering by ministers of their functions in the Dail.
Recourse is frequently had by members of the public to TDs to lobby governmental departments on their behalf. Similarly, other bodies may advocate on behalf of the individual.
The Freedom of Information Act, 1997 gave members of the public right of access to official information to the extent possible consistent with the public interest and the rights of privacy of others. The legislation was substantially amended in 2003 and was updated and replaced in 2014.
The legislation establishes rights for individuals to gain access to information held relating to them by public bodies, to have the information amended where incorrect and to obtain reasons for decisions. It also requires public bodies to make available to the public, a wide range of information on their operation and processes.
The openness and transparency of government have been radically increased by the advent of the Internet. Reports and consultations which were formerly published and made available through the Government Publications Office at a price, are now available free online. There is now an enormous amount of information on governmental matters available on the government websites.
The Citizens Information Board provides information and advice and advocacy in relation to a range of public services. They operate citizen information centres, low call phone services and publish a very wide range of information mainly in the form of simplified guidance for individuals, is published on citizensinformation.ie
The basis.ie website has been replaced by singlepointofcontact.ie pursuant to the EU Services Directive which provides business access to state information and services. It deals with basic business matters such as business online, paying taxes regulatory and employment issues. which in turn links to individual departmental and governmental bodies websites.
Individuals agencies and departments have websites containing a vast amount of information on the areas in which they exercise authority.
An increasing trend over the last 45 years has been the creation of regulatory bodies. Some of this has been driven by European Union legislation requiring the State to open competitions in certain areas formerly provided exclusively by public commercial state-sponsored bodies.
The Central Bank (replacing its Financial Services Regulator division) regulates banking, insurance and brokers. The Commission for Aviation Regulation and Commission for Communications Regulation and the Commission for Regulation of Utilities each play very significant regulatory roles in their sector.
Each effectively polices their respective areas. This has coincided with privatisation in the energy and telecommunication sector generally. Regulators may be subject to some governmental controls in their sector, subject in most cases to a common EU framework.
Regulators have various mechanisms to investigate and regulate, make rules, make and impose standards and output quality levels. They may have powers to enforce decisions with appeal mechanisms. There may be provision for prosecution by the body and increasingly, for administrative penalties.
Recourse to public representatives is a common means of having grievances reviewed. It commonly involves the politician writing a letter to the minister responsible.
Opposition or previous officeholders may write personally to the Secretary-General. Ordinary backbenchers may write to the Secretary-General informally or to an official they may know.
The letter is sent to the minister’s office and the department generally acknowledges receipt with a copy to the constituent. A final reply may be prepared by an official involved in the original decision.
Generally, the decision will not be altered. The ministerial reply in relation to complaints may give fuller reasons and rationale in respect of a decision.
In practice, much of the role played by representatives is advisory in relation to existing rights.
There are various types of parliamentary questions. Generally, the name of the person concerned is not published. The principal purpose is to air grievances. Most questions are asked by opposition TDs. Government TDs will have direct access to the minister.
Copies of all parliamentary questions are presented to the Dail and seen by the Secretary-General. Ministers will be briefed in relation to the background, in order to answer supplementary questions.
Replies to written questions are usually prepared by senior officials. The replies are provided by the minister’s office to the Dail to be passed to the TD concerned and for publication in the Dail’s record.
By convention, TDs receive answers to written questions promptly, usually within three to five days. About 30,000 to 40,000 parliamentary questions a year are submitted. Only about 5% are answered orally.
Questions may only be raised on matters for which a department has direct responsibility. Debates or statements are prohibited. The decision is not changed nor is it reviewed.
Judicial Challenge to Legality
Judicial review challenges the legality of a decision. It does not review the merits of or substitute the decision. If a decision is found to be unlawful judicial review is likely to be costly and prolonged. The cost is well beyond the reach of the vast majority of citizens.
Judicial review involves a challenge to legality. This may be based on the decision being outside the powers of the decision maker. Public bodies’ activities and operations, their jurisdiction and powers are regulated in detail by law. If the decision falls outside these powers then it may be held void.
Decisions may be made in accordance with law but the constitutional rights to fair procedure of the citizen may be disregarded. The courts will rarely look at the merits of the dispute unless it is so unreasonable that it is clearly unlawful. This effectively a determination that no reasonable body could have formed the relevant opinion.
Fair procedures or constitutional justice requires that certain cases where the key individual rights are affected the decision maker must be free from bias and the person concerned must be given a chance to put his side of the case. The complexity and nature of the decision will depend on the degree of fair procedures required.
The decision maker must act in good faith. It must determine the decision only on the merits rather than extraneous conditions.
There may be a legitimate expectation of entitlement to be heard in relation to applying for a benefit. The citizen should not be arbitrarily deprived of there an opportunity to be heard fairly.
Decisions are sometimes challenged on the basis that the underlying legislation itself infringes the Constitution. In this case, the Courts can decide that the law itself is invalid.
The European courts interpret and apply law made by the European Union. Law made by the EU override Irish law if there are inconsistencies. The Irish Courts apply European Union law of their own accord. It is possible to refer questions of European law to the European Court.
It is possible for any European Union citizen to petition the European Parliament. Petitions are forwarded to the competent commissioner and director general for a response.
The European Ombudsman hears complaints in relation to disputes between citizens and the EU. They may relate to discrimination, delay, unfair treatment in dealing with European institutions. The Ombudsman can act of its own initiative or after complaint.
There is a range of tribunals which hear disputes in relation to particular matters. They are usually established by law and are broadly similar to courts, but are not courts.
There is a wide range of tribunal commissioners, controllers’ registrars, commissions, etc. acting as primary decisions making or appeal bodies across most government sectors. In some cases, an appeal is made directly to a government minister or department.
The Workplace Relations Commissions determines disputes in relation to workplace and equality matters. The Social Welfare Appeals Office hears determinations in relation to social welfare entitlements. .The Refugee Appeals Tribunal hears appeals in disputes from the Office of Refugee Applications Commissioner.
Typically the tribunals are independent and decide cases independently of the administration and impartially. They usually reach legally binding decisions. Lawyers may or may not be present.
The tribunal may or may not conclude or consist of lawyers. In some cases, there is a lawyer chairperson and representatives of different interests on both sides. The procedures may be flexible and less formal. They must, however, conform to the requirements of constitutional justice.
They tribunal may bring its own expertise to bear on particular areas. They avoid legal costs in view of their own expertise and flexible procedures.
Tribunals of Investigation
Tribunals of inquiries have been set up from time to time to examine particular matters of public concern. The legislation provides extensive powers. The tribunal chairman is typically a judge. The enquiry concludes with a report by the tribunal, in relation to the matter.
The tribunal is set up under a resolution of the Oireachtas to inquire into certain matters within its terms of reference. This does not count as administration of justice so that full legal Court procedures will not apply. Because a persons integrity or good name may be put in question, persons enjoy constitutional rights in respect of their dealings with tribunals.
Generally, tribunals are held in public. A tribunal of enquiry is effectively an inquisition into a matter. It involves taking evidence in public and ultimately producing a report.
The witnesses and persons concerned are questioned and cross-examined in a similar manner to Court. The procedures may be close to but not quite as formal as Court.
Commissions of Investigations
The Commissions of Investigation Act, 2004 regulates commissions. Commissions tend to be in relation to specific acts or events such as the Monaghan bombing, child abuse in the Dublin diocese etc.
The government can create a commission on a proposal by a minister, approved by the Minister for Finance. The Houses of the Oireachtas must approve the order establishing the commission.
A commission may conduct an investigation and inquiry into any matter that it considers appropriate within the scope of its Oireachtas authoity, provided it complies with its own rules and procedures. It generally conduct its proceedings in private unless there are exceptional reasons. It can compel witnesses to give evidence. It can compel production of documents.
The commission reports to a minister. The minister must publish the final report unless it is prejudicial to criminal procedures in proceedings in progress.
The Houses of the Oireachtas have inherent power to initiate public enquiries. Parliamentary enquiries are used in relation to matters of general public concern such as the DIRT enquiry. They may investigate facts that are of public importance.
Parliamentary enquiries are common in other countries but are limited by constitutional considerations in Ireland insofar as they lead to conclusions reflecting on the good name of private citizens.
The Houses of the Oireachtas cannot interfere with the due process of law. The power of enquiry may not breach constitutional rights. The Supreme Court has decided the Oireachtas subcommittees do not have powers to make findings of fact which adversely affect a person’s reputation or put them at risk of having been found to have committed an offence.
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