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. In these cases, the public will not usually have specific rights. In contrast, other legislation, such as social welfare legislation will confer specific rights on citizens and will confer remedies to enforce them.
In some cases, where legislation appears to place absolute obligations and responsibilities on public authorities (with corresponding rights), the courts will interpret what is conferred as a power rather than a duty. Conversely, in other cases, where legislation refers appears to confer absolute or wide discretion on a public authority, it may be interpreted in context, as entailing an obligation that must be performed.
Public bodies, by virtue of their existence, will have most of the same inherent powers that any legal person, such as an individual or company or individual will have. They may be granted further special functions and powers by law. These powers will be specified in the legislation establishing the body concerned.
The principle of the limitation of powers, which applies to companies also applies to public bodies. Public bodies may only act within their powers. They may be limited in the types of transactions they may lawfully enter. Questions may arise as to whether public bodies have the powers to do particular transactions or actions, which they propose. A challenge may be made to be the exercise of the powers, by a third party.
The High Court has inherent powers to supervise the legality of actions undertaken by public bodies. This applies to Government Departments, state sector authorities and well as quasi-judicial bodies, such as tribunals. They may also determine the legality of the acts and decisions of the lower courts. The normal mechanism for a challenge is by judicial review. This is a challenge to the legality, and not to the merits, of the decision.
A decision of a public body may be illegal and thereby invalid because the public body is acting in an area in which it has no competence. The public body may have the requisite powers, but certain preconditions may apply before the power can be exercised. The actions undertaken must be within the scope of those powers. For example, the terms on which the power may be exercised may be set out in the legislation.
It is a general principle that a public body may not delegate the powers which its legislation designates it to undertake. Decisions have been found invalid and unlawful because the decision maker has abrogated its powers to a third party or other entity without the legislation so permitting. Where legislation designates a body as having a particular competence, it must undertake that function, unless it has the power to delegate it.
The fundamental rights of individuals under the Constitution has been invoked many times, in relation to the legality of public bodies’ action. Public bodies must comply with the principles of Constitutional justice. They must respect the Constitutional rights of the citizens. The legislation must read and interpreted in such a way as to respect fundamental Constitutional rights.
Public authorities are not afforded new powers or wider powers than those provided by the law, by the agreement or acquiescence of the public. Public bodies may not extend their powers by reason of agreement or submission of citizens to wider powers. Generally, where a statutory process is provided, it is not possible for the public body to follow a parallel or substitute process without a legislative basis, even if citizens accept or even agree to it.
Interpretation of Legislation
In many cases, the powers of public bodies will not be fully spelt out in legislation and must be implied. Actions which are a necessary part of what is contemplated by the legislation will generally be within the powers of the bodies. Anything which is fairly incidental or consequential on what is expressly provided for, will usually be impliedly permissible.
As with corporate powers, the courts will generally imply the powers that are necessary to allow the body to undertake its functions, effectively. As with the legislation generally, the courts may look beyond the words of the statute, to discern the intention of the lawmakers, with respect to the powers of the public body.
There are limits as to what will be implied into legislation. The courts may interpret and imply in powers which are conferred within the scope and intent of the legislation, but they may not make new law.
Legislation which imposes new obligations should be in clear terms. Legislation which imposes new obligations should be in clear terms. Taxation is seen as too great an intrusion to impose, other than with clear language.
Another aspect of this principle is that constitutional rights should not be readily limited. Legislation is interpreted so as to respect constitutional rights.
Where legislation changes existing law that is well settled and established, it should do so in clear terms.
The approach in Judicial Review
In judicial reviews of legality, the courts will generally defer to the findings of fact made by the authority or body under review. Many bodies and authorities are designated experts in their respective area of competence and are, in a better position to comprehend the relevant issues, than the courts. Moreover, the body or tribunal have usually heard the relevant witnesses and examined the circumstances more closely.
The courts will not generally interfere with findings of facts, even where they disagree wit them. They are much more willing to examine alleged mistakes of law. The application of law of the facts is that the essence of interpretation. Fact may be categorised in a more or less abstract manner, so that considerations of judgment and degree may arise.
Error on the face of the record
If the error can be classified as a legal error as opposed to an error in relation to the underlying facts, the courts are willing to intervene. However, the ascertainment of facts and the deduction of abstract propositions from them may involve the application of law name for the application of law to the facts so that the distinction becomes blurred.
Errors on the face on the record may be reviewed more readily than in cases, where the error does not so appear. The “record” is a document containing the key particulars of the proceedings as alleged and the decision. Errors on the face of the record may occur in relation to the decisions of lower court. The District Court is a court of record.
Orders which affect fundamental rights must show jurisdiction on their face. This includes search warrants, compulsory purchase orders, deportation orders and convictions. Each of these orders involves the direct interference with personal Constitutional rights. The rationale for the order should show the basis on which it is granted or made.
Legislation may provide for certain procedures and requirements to be followed in the decision-making process. It is a question of interpretation as to whether the failure to follow those procedures, would invalidate the relevant decision.
It may not be readily apparent that the relevant procedure or requirement is mandatory or “directory”. This principle applies both to procedures to be undertaken by public authority itself and the procedure to be followed by members of the public, for example, in relation to the application for the decision. This issue has arisen many times, in the context of planning permission applications.
Because of the implied constitutional right to fair procedures, legislation which spells out the elements of fair procedures in particular cases, is more likely to be interpreted as providing for mandatory requirements. The greater the extent to which they affect the basic rights of the citizen, the stricter the requirement for fair procedures and constitutional justice will be.
The more significant the right affected, the stricter the requirement for fair procedures will be. Accordingly, decisions which may affect a person’s liberty, such as those in the criminal and mental health field, are likely to be held to be interpreted to require that the prescribed procedures are strictly followed. Similarly, decisions that impact on the livelihood, property and other fundamental rights of the citizen, will usually require stricter adherence to procedures, than those that do not. The prescribed procedures are more like interpreted to be mandatory.
Where the procedural requirements are designed to protect the rights of the public, such as to allow them to participate in a decision-making process, they are likely to be interpreted to be mandatory. Where there has been substantial compliance with a requirement, but there is a technical defect or shortcoming, which is such that the public and persons affected are unlikely to be prejudiced or misled, the requirement is unlikely to be held to be strict.
Appeal to Court
Legislation may allow a right of appeal against administrative decisions to court. It will depend on the wording of the particular legislation as to whether the court will look at the merits and re-examine the decision or will examine its legality only. Most commonly the court review is limited to points of law.
The scope of an appeal to court is a matter of interpretation of the legislation. A common sense range of factors applies. If this is commonly the case, a specialist administrative body or tribunal has been established, the court will give more deference to its decisions. Then if the subject matter is one which could as easily be dealt with in a court proceeding by a body without that requisite expertise.
There can be difficulties in the distinction between points of fact and points of law. Where the appeal is limited to points of law, the court will usually regard itself as bound by the facts that the administrative or quasi-judicial body found, unless there is no evidence on which to base the finding.
Issues may arise as to how the law is to apply to the facts. Where inferences are drawn from facts, there may be mixed questions of fact and law. In this case the courts are more willing to intervene. This is particularly so in the matter relates to interpretation of documents which is seen as a classic legal function.
The courts will allow the tribunal’s considerable leeway in such review. Where the appeals on a point of law only, it will readily intervene unless there is no reasonable basis to support the decision.
Abandonment of Discretion
There is a general principle that an administrative body may not delegate powers which are conferred in it by law. Frequently legislation confers powers on ministers and other bodies in circumstances where it is impractical that all decisions are individually taken by the minister or other body. There is a pragmatic principles which is generally applicable in relation to ministerial decision to the effect that his officials may exercise functions in his name without specific delegation of powers.
In some cases in the 1970, the courts found actions invalid where ministers have simply rubberstamped reports and findings by civil servants. The requirement for the minister to make decision imply that he could not simply abandon his discretion.
However other court decisions have taken a more practical view. They are willing to interpret the legislation to mean that it did not literally require the minister to make individual decisions where this is not a common sense view of what it intended. In some cases where large numbers of regular decisions are required it may be possible to interpret that they may be undertaken by the minister’s official. Where however specific important decisions are involved it is more likely that they be made personally.
Time Limits for Challenge
There are relatively short time limits (generally, two or three months) for commencement of proceedings for judicial review. Modern legislation in particular sectors, has provided that the applicant for judicial review must obtain leave on notice to the public body, before judicial review may proceed. In some cases, the applicant’s case must be set out in full at an early date. This has happened in the planning and environmental field and more recently in legislation on NAMA and bank restructuting.
Similarly legislations established in the national asset management agency, even tighter restrictions were provided. It is clear that the state to its laws cannot exclude review of legality by the court. In principle, however, restrictions are permissible although there must be good reason and the rules must be clearly expressed. It may be necessary to allow exceptions in cases of undue hardship.
Effect of Invlaidation
If state action is found illegal, then it is null and void. In some cases the finding of legality may have severe general consequences. The same issue arises where laws have been found unconstitutional. They must have necessity to be unconstitutional either from the appointed time they were enacted or if they are predated, constitution from the constitution coming into force.
In most cases of illegality and invalidity, the underlying legislation is not affected. The invalidity extends only to the manner of exercise of a power or the procedures used therein.
In some cases the illegality involves a practice circular or even statutory rules being inconsistent with the relevant legislation. In this case the practice or rules will be invalidated without affecting the statute.
The courts have been relatively pragmatic, where for example, sections of the income tax code have been found unconstitutional leading to potential enormous liability to repay tax and where criminal law has been found unconstitutional leading to potential for release of significant number of convicted prisoners.
The courts have sought to limit the widespread retrospective effect of findings of unconstitutionality and illegality. They have taken the view in several cases, that the fact that the issues concerned were not raised, effectively precluded those parties from raising them.
In the Murphy case concerning income tax, the view was taken that parties who had not already initiated a claim, did not qualify. Similarly, where numerous convictions were affected by the invalidity of the statutory rape law, the Supreme Court refused to order the release of numerous convicted prisoners as the matter had not been raised in their cases.