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. They must prepare and publish the rules, procedures and practice guidelines which they use. They must publish an index of precedents of decisions, determinations and recommendations under any enactment in relation to rights, benefits, obligations, penalties and sanctions which affect the public. A number of public bodies have published customer charters and charters of rights, which may be relevant to administrative decision making.
Court Review of Administrative Decisions
Judicial review refers to court review of administrative decisions. The Courts have long exercised the inherent power to review the legal basis of decisions of public bodies , on the application of a person adversely affected by a decision by the body concerned. The Courts are concerned with the legality of administrative decisions. They do not generally review the merits of the decisions.
Many court challenges to the legality of administrative decisions concern the existence of proper procedures. The Courts do not usually review the evidence and facts before the decision maker. Where the decision making power exists at law, where proper considerations are taken into account in the decision making and where proper procedures exist and are followed, the courts are unlikely to interfere with the merits of the administrative decision.
Prior to the Constitution, the Courts applied the principles of natural justice to decision making. Natural justice refers to certain basic principles of fairness in making decisions which affect rights and obligations. The first principle is that the decision should be made by an independent and impartial adjudicator established by law. The second principle is that the person affected, should be allowed to put forward his case to the decision maker and should be allowed to contradict any evidence or facts contrary to his case or position.
These long established principles of natural justice have been elevated to constitutional status in the Irish context and are referred to as “constitutional justice”. This reflects the fact that they part of the constitutional guarantee of fair procedures and due process in decision making that affects individual rights and obligations. An infringement of constitutional rights will entitle the person affected to relief by court order and may in some exceptional cases, entitle him to compensation.
The constitutional requirement for fair procedures has been developed over time to embrace a broader range of principles of justice. The extent of the principles applicable, depend on the nature of the decision and the extent to which it impacts on the person affected by it. It may be required that that the tribunal or decision maker sit in public, give a prompt decision, give reasons for the decision, that there should be a right of appeal. In certain cases it may require free legal aid and the opportunity to confront accusers.
The requirement of constitutional justice is fundamental and cannot be excluded by legislation. If legislation required otherwise, it would be void. However, legislation is presumed to be compliant with the Constitution, and therefore adherence to the constitutional requirements will be implied into the legislation.
The Courts will imply obligations to follow principles of constitutional justice even where the legislation says nothing about it. It is not enough that there is an appeal process which allows for constitutional justice. There must be constitutional justice at the relevant stages in the decision making.
The fullest expression of constitutional justice would be found in court proceedings. Each side has the opportunity to challenge the other’s evidence by cross-examine witnesses and to put the case for decision by a judge, who is independent of the administration. A less elaborate degree of constitutional justice will suffice for so called “quasi-judicial” decisions. A purely administrative decision will require basic fair procedures only.
It is a fundamental principle that a person should not be a judge in his own case. This implies that the person making the decision must not be biased, in relation to the matter or in favour of one side or the other. He should not have a personal interest in the matter concerned, which might imply a bias. The principle goes further in that there should not even be the appearance of bias or of the possibility of bias.
A decision maker in a Government department or other public body might be said to be affected by the interests of the department or body itself. This would not generally be enough to constitute bias, in the sense prohibited by the principles of constitutional justice. The decision maker is not automatically biased simply because of loyalty to the entity that he works for. Otherwise, it would be impossible to operate the administration.
It is often said that justice must not only be done, but must be seen to be done. A decision maker may be biased because of being involved in an earlier stage of the process or having a financial or material interest in the decision. It is not generally permissible for the same to be involved in two stages in the decision-making process. He should not review or hear an appeal from his own decision. If a person has a personal or financial interest in the decision, the risk of bias is self evident.
In the case of administrative decisions, the required degree of independence is less than that required for quasi judicial decisions, which are typically made by a tribunal or similar body. In relation to administrative acts, a decision will not usually be invalidated, unless there was a real likelihood of bias. In judicial and quasi judicial cases a reasonable suspicion of bias, being a higher test, would apply. Generally, higher standards apply to decisions which affect a person’s interest and rights..
Where there is no other available decision maker, the bias principle gives way to the principle of necessity. This principle will even apply to quasi-judicial and even court hearings, in the highly exceptional circumstances, where there is no other possible decision maker..
In some cases, it is possible for somebody who is aware of the bias or possible bias, to waive his objection to the decision maker. The person concerned must have full knowledge and make the waiver from a fully informed perspective.
Tribunals and other governmental bodies which adjudicate on rights and obligations under statute, must follow fair procedures. Generally, such bodies need not adhere to the full rules and rigours of Court procedures. They may act informally. They need not act exclusively on the basis of sworn evidence nor must they exclude evidence that would be excluded in a Court proceeding.
There is considerable flexibility in relation to the required degree of formality and complexity of procedure. The requirement for fair procedures applies differently in different contexts. In cases, such as where a person’s key rights, such as his ability to earn a living, his property or his reputation is at stake, rigorous and extensive fair procedures will be required. The gravity of the consequences is relevant. Where, for example, a decision involves deprivation of property or the suspension or termination of a licence or membership of professional organisation, more rigorous requirements apply.
Where a person’s livelihood or good name are in issue, the person concerned would generally be entitled to the details of the complaint, in good time. He should have the opportunity to challenge the complaint before an independent tribunal or body. He should be given information to assist him in preparing his response to the complaint. He should be given details of the case against him. In some cases, the person affected by a decision may be well aware of the particular matter. In this case, the public body need not necessarily give notice of something of which the person concerned is well aware.
Persons must be able to make the best case they can. In some cases, this may require an oral hearing, the right to summon witnesses and cross-examine the other side’s witnesses. Where an accusation is serious and bears on a person’s good name, livelihood and other such vital interests, a oral hearing may be required with full right of cross-examination. He may be entitled to legal representation, if this is necessary to present the case. Where the matter is very serious, it may be necessary that the person’s legal fees are paid.
There may be a failure of fair procedures where a decision maker relies on external information, not disclosed to the person adversely affected. However, where a particular body, such as a tribunal, has expertise in a particular matter, it is allowed to draw on its own general expertise. The general accumulated experience of the tribunal can be brought to bear without there necessarily having to be full disclosure of the basis on which it does so.
The Administrative Decision
Administrative bodies may be obliged to give reasons for their decisions. The Courts have increasingly required the giving of reasons as an element of constitutional justice. In addition the Freedom of Information Act provides a duty on public bodies to give reasons for their decision. The Act obliges a person to be given details of any findings of any fact relevant to the decision made.
An application may be made in writing to the head of a department or other entity by a person affected by the decision or who has a material interest in the matter concerned within four weeks. The department must give reasons for the decision and the findings of material issues and the facts. The giving of reasons allows the person concerned to assess the legality and basis of decisions. Decisions must generally be given reasonably promptly. In some cases a long delay can negate basic justice.
Scope of Constitutional Justice
In broad terms, the requirements of constitutional justice apply when an individual\’s vital interests are directly affected by governmental actions. The requirements apply to individual decisions to a greater extent and to policy decisions which affect a broad category of persons, to a lesser extent.
Formerly, statutory grants, payments and pensions were regarded as a privilege, rather than as a right. However, the modern position reflects the reality that they are in the nature of property rights. The Courts have developed principles in relation to the protection of so called reasonable expectations in recent decades. The principle may apply where a person has a reasonable expectations that a licence will be renewed. The principles of constitutional justice have been extended to the grant and removal of such quasi-rights.
Generally constitutional obligations bind public bodies only. However, the courts have on occasions extended the obligation, to arrangements where an apparently private law matter has a notional public law basis. An office holder is a position separate from the individual concerned, created by legislation. As well as many offices specifically created by law, directorships of companies are offices because they own their existence to company law. Because offices are usually established by law, constitutional justice applies to critical decisions affecting the office holder.
The types of decisions which attract the requirements of constitutional justice can in some limited cases, extend beyond government sector decisions to the decisions of privately bodies which regulate businesses, professions, trade unions, etc. Where private bodies make decisions which are critical to a person\’s vital interests, that person may have a right to constitutional justice in relation to the decision.
As is the case with governmental bodies, the content and the stringency of rules of constitutional justice depend on the circumstances. Where disciplinary action of a trade union professional body affects a person\’s livelihood, they must observe the rules of natural or constitutional justice.