{"id":5096,"date":"2018-12-22T18:33:34","date_gmt":"2018-12-22T18:33:34","guid":{"rendered":"http:\/\/legalblog.ie\/discretionary-powers-issues\/"},"modified":"2018-12-22T18:33:34","modified_gmt":"2018-12-22T18:33:34","slug":"discretionary-powers-issues","status":"publish","type":"post","link":"https:\/\/legalblog.ie\/discretionary-powers-issues\/","title":{"rendered":"Discretionary Powers"},"content":{"rendered":"<div id=\"ez-toc-container\" class=\"ez-toc-v2_0_63 counter-hierarchy ez-toc-counter ez-toc-grey ez-toc-container-direction\">\n<div class=\"ez-toc-title-container\">\n<p class=\"ez-toc-title \" >Table of Contents<\/p>\n<span class=\"ez-toc-title-toggle\"><a href=\"#\" class=\"ez-toc-pull-right ez-toc-btn ez-toc-btn-xs ez-toc-btn-default ez-toc-toggle\" aria-label=\"Toggle Table of Content\"><span class=\"ez-toc-js-icon-con\"><span class=\"\"><span class=\"eztoc-hide\" style=\"display:none;\">Toggle<\/span><span class=\"ez-toc-icon-toggle-span\"><svg style=\"fill: #999;color:#999\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" class=\"list-377408\" width=\"20px\" height=\"20px\" viewBox=\"0 0 24 24\" fill=\"none\"><path d=\"M6 6H4v2h2V6zm14 0H8v2h12V6zM4 11h2v2H4v-2zm16 0H8v2h12v-2zM4 16h2v2H4v-2zm16 0H8v2h12v-2z\" fill=\"currentColor\"><\/path><\/svg><svg style=\"fill: #999;color:#999\" class=\"arrow-unsorted-368013\" xmlns=\"http:\/\/www.w3.org\/2000\/svg\" width=\"10px\" height=\"10px\" viewBox=\"0 0 24 24\" version=\"1.2\" baseProfile=\"tiny\"><path d=\"M18.2 9.3l-6.2-6.3-6.2 6.3c-.2.2-.3.4-.3.7s.1.5.3.7c.2.2.4.3.7.3h11c.3 0 .5-.1.7-.3.2-.2.3-.5.3-.7s-.1-.5-.3-.7zM5.8 14.7l6.2 6.3 6.2-6.3c.2-.2.3-.5.3-.7s-.1-.5-.3-.7c-.2-.2-.4-.3-.7-.3h-11c-.3 0-.5.1-.7.3-.2.2-.3.5-.3.7s.1.5.3.7z\"\/><\/svg><\/span><\/span><\/span><\/a><\/span><\/div>\n<nav><ul class='ez-toc-list ez-toc-list-level-1 ' ><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-1\" href=\"https:\/\/legalblog.ie\/discretionary-powers-issues\/#Discretionary_Powers\" title=\"Discretionary Powers\">Discretionary Powers<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-2\" href=\"https:\/\/legalblog.ie\/discretionary-powers-issues\/#Act_Reasonably\" title=\"Act Reasonably\">Act Reasonably<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-3\" href=\"https:\/\/legalblog.ie\/discretionary-powers-issues\/#Bad_Faith_Improper_Purpose\" title=\"Bad Faith \/ Improper Purpose\">Bad Faith \/ Improper Purpose<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-4\" href=\"https:\/\/legalblog.ie\/discretionary-powers-issues\/#Published_Criteria\" title=\"Published Criteria\">Published Criteria<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-5\" href=\"https:\/\/legalblog.ie\/discretionary-powers-issues\/#UK_Approach\" title=\"UK Approach\">UK Approach<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-6\" href=\"https:\/\/legalblog.ie\/discretionary-powers-issues\/#Influence_of_Constitution_in_Ireland\" title=\"Influence of Constitution in Ireland\">Influence of Constitution in Ireland<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-7\" href=\"https:\/\/legalblog.ie\/discretionary-powers-issues\/#Equality_and_Proportionality\" title=\"Equality and Proportionality\">Equality and Proportionality<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-8\" href=\"https:\/\/legalblog.ie\/discretionary-powers-issues\/#Constitutional_Human_Rights_Involved\" title=\"Constitutional\u00a0 \/ Human Rights Involved\">Constitutional\u00a0 \/ Human Rights Involved<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-9\" href=\"https:\/\/legalblog.ie\/discretionary-powers-issues\/#Discretionary_Powers_Issues\" title=\"Discretionary Powers Issues\">Discretionary Powers Issues<\/a><\/li><li class='ez-toc-page-1 ez-toc-heading-level-3'><a class=\"ez-toc-link ez-toc-heading-10\" href=\"https:\/\/legalblog.ie\/discretionary-powers-issues\/#Limits_to_Judicial_Review\" title=\"Limits to Judicial Review\">Limits to Judicial Review<\/a><\/li><\/ul><\/nav><\/div>\n<h3><span class=\"ez-toc-section\" id=\"Discretionary_Powers\"><\/span>Discretionary Powers<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Many governmental and public bodies\u2019 functions and powers involve the exercise of discretion.\u00a0 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.<\/p>\n<p>As in other areas of public law, the courts do not wish to second-guess the public body.\u00a0 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.<\/p>\n<p>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. What appears to be a broad discretion will often, in fact, allow minimal discretion.\u00a0 In other cases, the discretion may be broader but will be nonetheless constrained.<\/p>\n<p>Where a decision affects a citizen\u2019s fundamental Constitutional rights, the courts will be especially vigilant in relation to the exercise of the powers granted.\u00a0 Powers must be exercised in accordance with the Constitution within the limits of the statutory schemes. They must be exercised in good faith for the purposes of the legislation.\u00a0 They must not be exercised in a manner which misinterprets or misapplies the law.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Act_Reasonably\"><\/span>Act Reasonably<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Powers and authority must be exercised in a reasonable fashion, within the scope of the legislation. \u00a0Powers must be exercised in good faith.\u00a0 That is to say, that they must be exercised for the purpose for which they are granted, and not for extraneous purposes. The decision-maker must take account of relevant facts only and must not take account of irrelevant facts in the process. This will serve to narrow an apparently absolute or wide discretion.<\/p>\n<p>Decision-makers must act reasonably. In this context, the requirement to act \u201creasonably\u201d does not allow a court which reviews the decision to substitute its own decision.\u00a0 The decision will only be unreasonable in this context, where it is so unreasonable that no decision maker could validly have made the decision concerned under the relevant legislation. For this purpose, it must be in made in disregard of common sense or fly in the face of fundamental reason. Where decisions are arbitrary or disproportionate, they may be unreasonable in this sense.<\/p>\n<p>It may be difficult for a court to discern the reasons for a particular decision. The decisions of public bodies tend to be documented. In many cases, public bodies must give reasons for their decisions. \u00a0This will assist in ascertaining whether the powers have been validly exercised. In other cases, the courts may have to infer the reasons and intentions of the public body, from the available documents and circumstances.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Bad_Faith_Improper_Purpose\"><\/span>Bad Faith \/ Improper Purpose<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Bad faith in this context refers to the decision maker seeking to achieve an objective, other than that which the legislation contemplates or allows.\u00a0 The courts will not frequently find dishonesty but may be a position to infer improper purposes. In many cases, the legislation will prescribe certain pre-conditions for the exercise of the power. Where the decision maker does not comply with these conditions, this may demonstrate bad faith.<\/p>\n<p>A decision is made for an improper purpose, where it is outside the scope of the legislation concerned.\u00a0 This may occur where the decision maker takes account of irrelevant considerations.\u00a0 The legislation may set out a range of considerations, of which account is to be taken in making the decision.\u00a0 In some cases, the consideration may be quite open that it would be difficult to find that a decision is inconsistent.\u00a0 However, in other cases, the considerations are in open terms and it may be less easy to show that the body has based its decision on a factor which is not valid under the legislation.<\/p>\n<p>The relevant factors and considerations will not necessarily be set out in the legislation in full or at all.\u00a0 In these cases, the courts will interpret and infer the purpose of the legislation, so that if the decision is inconsistent with the inferred purpose, it may be invalidated.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Published_Criteria\"><\/span>Published Criteria<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Sometimes, public bodies publish their policies and decision making criteria in relation to the exercise of powers under legislation.\u00a0 They must be consistent with the legislation.\u00a0 The public body which administers the legislation has no monopoly on its interpretation. The courts are the final arbiters of the meaning of legislation.<\/p>\n<p>In a competitive application, published criteria should be made available to all applicants.\u00a0 If the criteria are so specific that only one or a limited number of potentially suitable applicants can conform, the decision may be invalid on the basis that the decision has been made before, the process of considering applications has begun.\u00a0 Where, however, the criteria are set on a rational basis, with which one applicant only can conform, they likely to be upheld.<\/p>\n<p>Where legislation requires a body to have regard to particular criteria and guidelines, it may be possible to demonstrate that this requirement has been disregarded.\u00a0 The guidelines must be accommodated or worked into the decision-making process.\u00a0 It might be difficult to challenge the weighting given by the particular decision-maker.<\/p>\n<p>The principles applying to the exercise of discretionary powers also extend to the making of rules and bye-laws.\u00a0 Where rules and bye-laws are arbitrary, \u00a0unreasonable or uncertain of the scope, they may be held invalid as an unauthorised exercise of the rulemaking power.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"UK_Approach\"><\/span>UK Approach<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The modern UK formulation (GHQC case) of the above principles refers to illegality, irrationality and procedural impropriety.\u00a0 Irrationality conforms with unreasonableness in the above-mentioned sense.\u00a0 This refers to a\u00a0 decision that no sensible person who has applied their mind to the question concerned, could have arrived at.<\/p>\n<p>There is the same judicial deference to the expertise and primacy of the designated decision maker. Under the modern formulations, the courts are more willing to examine the unfairness, arbitrariness and justifiability of public decisions.\u00a0 There is greater emphasis on the rights of the citizen.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Influence_of_Constitution_in_Ireland\"><\/span>Influence of Constitution in Ireland<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The Irish courts have always had a basis in constitutional law for vindicating the right of the citizen in decision making by public bodies.\u00a0 They have taken a slightly different approach to judicial review to the above UK formulation. The principal Irish Supreme Court case (Keegan) \u00a0emphasises the principle of accepted moral standards. There is more emphasis on whether the decision flies in the face of fundamental reason and common sense.<\/p>\n<p>The tendency in the last 20 years has been for the Irish courts to narrow the grounds of challenge on the basis of unreasonableness. The courts will intervene on the basis of irrationality in limited and rare cases.\u00a0 The mere fact that the court is not satisfied that it would have made the same inferences that the decision maker made or that the case to the contrary is much stronger, is not enough.\u00a0 There must be something closer to the decision-maker having no basis for its decision for unreasonableness or irrationality to apply.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Equality_and_Proportionality\"><\/span>Equality and Proportionality<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>The courts will require compliance with constitutional principles in the decision-making process.\u00a0 One such principle is equality.\u00a0 If, for example, conditions are arbitrarily imposed on one person while another person in the same position is not subject to such conditions, there may be a breach of this constitutional principle.\u00a0 Differences in treatment must be justified by differences in capacity, physical or moral or social function.\u00a0 Equality does not imply uniformity.<\/p>\n<p>Related to the principle of equality is the principle of proportionality, which has been imported from the European Court of Human Rights and the European Court of Justice case law.\u00a0 Under the principle of proportionality, the difference in treatment must be proportionate to differences in circumstances.\u00a0 A decision may be disproportionate if it is unduly burdensome relative to the state interest to be protected.\u00a0 Proportionality allows a more balanced approach to the reasonableness of decisions.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Constitutional_Human_Rights_Involved\"><\/span>Constitutional\u00a0 \/ Human Rights Involved<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Where constitutional rights are involved, the courts may apply a higher standard in reviewing decisions where irrationality and procedural impropriety are claimed.\u00a0 Under this approach, \u00a0decisions concerning liberty, good name, property rights, the right to work, et cetera, will be more carefully scrutinised.\u00a0 This approach is applied internationally, particularly in the United States.\u00a0 Some Irish courts have rejected the notion of a higher level of scrutiny for constitutional decisions.<\/p>\n<p>The European Court of Human Rights and the EU courts recognise the principle of applying a higher standard where fundamental rights are involved.\u00a0 In areas where European Union law set the background to Irish law, the courts appear to reflect the European Union standards for decisions involving fundamental human rights (e.g. deportation).\u00a0 In this context, \u00a0proportionality may be adopted as a key principle in reviews on the \u201crationality\u201d ground.<\/p>\n<p>Related to the principle of equality is the principle of proportionality, which has been imported from the European Court of Human Rights and the European Court of Justice case law.\u00a0 Under the principle of proportionality, the difference in treatment must be proportionate to differences in circumstances.\u00a0 A decision may be disproportionate if it is unduly burdensome relative to the state interest to be protected.\u00a0 Proportionality allows a more balanced approach to the reasonableness of decisions.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Discretionary_Powers_Issues\"><\/span>Discretionary Powers Issues<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>Discretionary powers may be misused by adhering to an inflexible rule, where legislation requires flexibility and discretion.\u00a0 Public bodies are entitled to have policies. They assist in consistency and fairness.\u00a0 It is possible for public policies to adopt blanket policies and in many cases, this will be perfectly reasonable.\u00a0 Although guidelines may be positive in many cases allowance must be made for exceptional cases. If inflexibly applied, it may be an unlawful use of the power.<\/p>\n<p>A related issue to a blanket policy-based approach is that of rubber stamping by the designated decision maker, often the Minister in the context of a departmental decision. Where the designated decision maker does not examine the matter and simply rubberstamps decisions made by officials, it may be invalided.\u00a0 Ministerial decisions may be entitled to effectively delegate decisions to senior officials, under some legislation.<\/p>\n<h3><span class=\"ez-toc-section\" id=\"Limits_to_Judicial_Review\"><\/span>Limits to Judicial Review<span class=\"ez-toc-section-end\"><\/span><\/h3>\n<p>In principle, most discretionary decisions may be reviewed.\u00a0 Formerly there was a category of decisions which remained immune from review.\u00a0 This category included those of a political, highly policy-based or security\/operational nature.\u00a0 They still remain largely immune but the courts have leaned increasingly towards allowing for the possibility of judicial review.<\/p>\n<p>For a long time, the discretion of the DPP in relation to prosecutions was not open to challenge.\u00a0 This position remains substantially intact.\u00a0 The courts have been willing to consider the possibility of a challenge in exceptional cases. Where the DPP has initiated prosecutions, withdrawn charges and then re-prosecuted, the courts have allowed the possibility of challenge.\u00a0 In a case where the DPP had indicated that it would not prosecute and then reversed that decision without apparent change in circumstances, the court allowed review.<\/p>\n<p>The courts remain extremely unwilling to intervene in operational matters, for example, in relation to Gardai in the investigation of crime.\u00a0 The courts have shown themselves unwilling to make any orders to force the Gardai to investigate particular alleged crimes, to prosecute or not to prosecute.\u00a0 The purpose is to preserve the efficiency of the force.<\/p>\n<!--themify_builder_content-->\n<div id=\"themify_builder_content-5096\" data-postid=\"5096\" class=\"themify_builder_content themify_builder_content-5096 themify_builder tf_clear\">\n    <\/div>\n<!--\/themify_builder_content-->\n","protected":false},"excerpt":{"rendered":"<p>Discretionary Powers Many governmental and public bodies\u2019 functions and powers involve the exercise of discretion.\u00a0 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 [&hellip;]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_exactmetrics_skip_tracking":false,"_exactmetrics_sitenote_active":false,"_exactmetrics_sitenote_note":"","_exactmetrics_sitenote_category":0,"footnotes":""},"categories":[130],"tags":[],"_links":{"self":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/5096"}],"collection":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/comments?post=5096"}],"version-history":[{"count":0,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/posts\/5096\/revisions"}],"wp:attachment":[{"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/media?parent=5096"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/categories?post=5096"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/legalblog.ie\/wp-json\/wp\/v2\/tags?post=5096"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}