Administrative Law

Historically, administrative law studied how the State was administered. In modern times it concerns itself largely with the process of judicial review.

Topic 1 – The Nature of Judicial Review

Judicial review exists primarily to ensure procedural propriety.

‘Judicial review’  has two meanings:

  1. At common law – The power of the courts to review decisions taken by public bodies to see if they are legal. (Traditional/English position)
  2. Courts power to review/strike a law in its compatibility with the Constitution. (American Style)

We are concerned with the first meaning – the traditional view. Constitutional law considers the second meaning.

The court is here being asked to review the manner in which the decision was made.

  • Public bodies are not just obliged to stay within their powers, but also obliged to adhere to certain ethical/fair standards that must be applied. Implicit in the delegation of power to act on behalf of the people, there is an obligation to act ethically.
  • It is not a challenge of the statute, instead it is a challenge of the behavior of a public body under a statute.

Only decisions of public bodies can be challenged by judicial review.

  • -What is a public body?
    • There is no definitive list of what it is or who they are. Say all Gov’t bodies, councils, Garda Commissioner, Min. for Defence, HSE, Competition Authority, Health & Safety Authority etc.
    • We accept that schools are public bodies – what about higher education?
    • NUIG is a public body, so is UCC, UCD, TCD, DCU, UL etc.  But, Griffith College is a private body and is therefore not subject to judicial review.

The Superior Courts (SCt, HCt and CtCA) are not subject to judicial review. The lower courts (district, circuit, special criminal) are. – In asking why? The reason is that decisions from the lower courts can be appealed. The lower courts are where the vast bulk of judicial review cases come from.

What is the significance of the fact that only decisions of public bodies can be challenged by judicial review?

  • A huge advantage to being able to challenge a decision by judicial review as opposed to relying on breach of contract for example. The REMEDY is the important fact here. E.g. If you succeed in establishing a breach of contract, damages are the normal remedy.
  • Under Judicial Review, the remedies are much more powerful. There are 6, but the important ones are:

    • Certiorari – Quash the challenged decision.
    • Mandamus – “We command/order” – This is rarely sought. This is to order a public body to fulfill a duty which it is required by law to fulfill but has not or refuses to fulfill.
      • Example: The Court might order a public body to simply make a decision. E.g. setting up a business requires a license. You applied to the Minister – he is obliged to make a decision.
    • Prohibition – The effect of this remedy is to prevent a public body which exercises judicial functions from doing something it proposes to do, because the proposed act would be illegal or in breach of the requirements of natural justice
      • E.g. Historic complaints of child sexual abuse. Defendant could raise a prohbition request under Art. 38 (fair trial) in a reasonable time. They would argue that because of the significant lapse of time, it would be unfair to put them on trial.

How to Challenge?

Two short documents – HCt sits every Monday

  • Leave to proceed (judge ascertaining if you have a case in which you won’t be given leave but mostly leave is granted.

Grounds for Judicial Review

There are 6 general grounds for judicial review – these are not exhaustive:

  1. Ultra Vires
  2. Illegality
  3. Breach of Natural Justice
  4. Abuse of Discretion
  5. Legitimate Expectation
  6. Error of Law
  • Important thing to remember is ‘what judicial review is about’. Since it is so important, should the courts have this enormous power? – In effect to override democratically elected institutions?
    • Well, they don’t have that power. Judicial review is about the manner in which the decision was made, not the substance of that decision.
    • It is therefore an advisory/supervisory role that is played by the Courts. To ensure that a decision was properly made. An example is:
      • ****Keogh v Galway Borough Council
        • Bishop donated money to the local Council. The Council has to submit a city zoning plan every year or so. There is possibility for deviation (material alteration), but for this deviation to take place, the local authority has to do certain things by statute (e.g. only if a weighted majority of councilors voted in favour, notices given to public of intention to deviate (conditions precedent)).
        • Residents in the area were unhappy with the travelers site being built in the area
        • There was a judicial review proceedings – Held: it was found that the conditions precedent were not followed properly and the decision by Galway Borough Council was quashed. However, the Council was free to go over and make the same decision, albeit properly this time.
          • This case evidences that it is the manner in which the decision was made, and not the substance of that decision that is the nexus of judicial review proceedings. 
          • Another example – Clifton Airport Construction – various people wanted to sell their land to the development company. However, some people’s land was under a conservation scheme/restrictions.
            • HCt – claim succeeded. Orders were quashed (Certiorari)

Is all of this totally pointless then when the same decisions are made?

  • Sometimes it is. However, not always (e.g. Planning and District Court decisions).
  • Drunk Driving cases are extremely common. The HCt, in conjunction with a Leave, will usually order a STAY on the District Court decision.

Topic 2 – Constitutional and Natural Justice – The Rule Against Bias

Two rules of natural justice:

  1. Nemo iudex in causa sua  –  “let nobody be a judge in their own case”.
  2. Audi alteram partem – “hear the other side”.

These are rules which do not depend on the laws of any one state, and are not determined by the culture of any particular society – They are in this sense,  axiomatic.

  • The SCt in Ireland noted that perhaps we should talk about Constitutional Justice instead as these natural justice rules were protected by the Constitution. However, the concept of natural justice is still used today. 

Why do we have rules of natural justice though, since in law we are not obliged to act ethically, we are only obliged to act legally (e.g. consideration in contract law)? –  When we make decisions with regard only to ourselves, we are not obliged to act ethically, however, when public bodies make decisions as regards property etc., they must act ethically as the property belongs to all. These ethical standards are broadly encapsulated in the two rules above.

-Rule 1 – Nemo iudex in causa sua – “The Rule Against Bias”

What is the moral purpose of the rule against bias?

  1. Basic fairness
  2. Promotion of public confidence in the justice system.
    • “Justice should not only be done, but also be seen to be done” – Lord Hewart in: ***R v Sussex Justices [1924] 1 KB 256.

What forms of bias exist?

  • Pecuniary or material bias.
  • Being in some sense an actual party to the case.
  • Personal attitudes, relationships and beliefs (the bulk of case law deals with issues such as these).
  • Loyalty to an institution.

Some preliminary points to consider:

  • Although many of the leading cases involve bias or allegations of bias on the part of judges in the law courts, the same principles apply to other decision-makers within the public sector. It also applies to juries, as we shall see in Singer case.
  • If it appears to a judge that, because of some personal connection or one of the other grounds mentioned above, he/she should not hear the case, the should recuse him/herself.
  • If a judge who is requested to withdraw from the case on account of alleged bias refuses to do so, the parties usually have no option but to proceed with the case before that judge. However, the decision may later be appealed by way of judicial review on the grounds of bias.
    • We shall see,it is by no means the law that a judge should withdraw from a case simply because of being asked to do so by one of the parties. Recusal is required only when there is some genuine, objective reason for saying that the judge in question should not hear the particular case.

–Pecuniary or Material Bias

  • Unless it is absolutely minimal, such allegations of bias, if proven successfully leads to the presiding judge to be automatically disqualified.
    • In***Dimes v Grand Junction Canal (1852) – A decree in favour made by the then Lord Chancellor was reversed, as he held shares in the plaintiff company. There was no allegation or finding of actual bias, but the House of Lords held that the principle that person should not be a judge in their own case must be held sacred.
  • But, they are prepared to recognize a de minimis exception to this rule (at least in England).
    • De minimis means something lacking significance or importance – so minor as to merit disregard. So for example if a presiding judge held a share worth only £1 in a company, this may satisfy the de minimis rule.

This case exemplifies the notion earlier that justice should not only be done, but also be seen to be done.

–Being Party to a Case

Illustrated in ***R v Bow Street Magistrate ex. p. Pinochet [1999] 2 WLR 272, the Pinochet case, being party to a case also leads to automatic disqualification – under English law at least. 

  • In Pinochet – it was shown that once a judge or other decision-maker is party to the cause, even if he does not have a personal financial interest in it, he is disqualified “without any investigation into whether there was a likelihood or suspicion of bias”. 
    • Lord Hoffman had earlier held that senator Pinochet did not enjoy immunity from extradition. Amnesty International had been granted intervener status however – but Lord Hoffman was an unpaid director and chairman of Amnesty International Charity Ltd. His wife was also employed by them.
    • A differently convened House of Lords was required to see if the decision should be set aside because of Lord Hoffman’s involvement.
    • The decision was set aside although there was no alleged or found bias.
      • This case also exemplifies the notion earlier that justice should not only be done, but also be seen to be done.

–Personal Attitudes, Relationships and Beliefs

The fundamental principle is that a person charged with making a decision must do so in a purely impartial manner and must not be activated, or be seen to be activated, by any bias, whether for or against, any particular party. Again, it is important to stress that appearance matters as much as substance.

  • Range of circumstances can include:
    • Family relationship with a party.
    • Friendship or close social relationship with a party.
    • A firmly expressed belief about the manner in which certain matters should be organized etc.
    • Prior expression of hostility towards one of the parties
  • ***R (Donoghue) v Cork County JJ [1910] 2 IR 271
    • After convicting defendant – he remarked that “he would not leave any member of the defendant’s family in the district”. The conviction was thereby quashed.
  • ***R (Harrington) v Clare JJ [1918] 2 IR 116
    • Applicant was an RIC sergeant who was convicted of an assault by a panel of justices. Assault arose when the applicant tried to intervene in a victory process following De Valera’s election victory in a County Clare election in 1917. A Mr Rohan signed the summons and adjudicated.
      • The conviction was quashed.
  • ***Dillon v Minister for Posts and Telegraphs, Unreported, SCt, June 3, 1981.
    • This is a modern illustration of the same principles in Donoghue and Harrington.
    • Minister refused to grant free postage to an election candidate who, in his election literature described politicians as dishonest.

It is difficult to identify when persona;l attitudes and beliefs will be sufficient to disqualify a person from acting in the case. 

String of Locabail cases – this case clarifies the law but incorporates for cases into one.

***Locabail (UK) Ltd v Bayfield Properties Ltd – first one

  • ****R v Bristol Betting and Gaming 
    • Pecuniary bias was alleged – but the de minimis principle was also alleged.
    • Respondent body had objected to the grant of a license to a  bookmaker’s shop, where the judge had shares of about £5000 in the holding company.
      • The de minimis principle applied
  • ***Timmons v Gormley
    • A QC sitting as a part-time judge made an award for £227,000 plus costs to the plaintiff in a road traffic accident. He was an expert on this area of tort law. He had written many books and then some articles where he was extremely critical of insurance companies and their delaying tactics and their reluctance to deal fairly with claimants. He was clearly pro-plaintiff.
    • CtofA stressed there was no bias. However, it was said that such persons must be circumspect in the manner in which they express their opinions. In the present case and “with great reluctance” it felt that a claim of objective bias was made out. It therefore quashed the decision and ordered a retrial.
      • This raises questions about all judges etc. in the articles they write and whether it may preclude them from further cases etc.
  • ***Williams v Inspector of Taxes
  • ***Locabail (UK) v Bayfield Properties
    • Complex litigation over companies assets in a divorce settlement.
    • The wife made no objection to a disclosure of possible bias. Later, after she lost her case she sought to have the decision set aside on the ground of bias.
    • CtofA refused. She “could not have her cake and eat it.”

General Principles established in ***Locabail.

  • The CtofA refers to the “real danger” test. The test in Ireland and now England, is the “reasonable apprehension” test. 

Some Irish cases:

  • ***O’Driscoll v Law Society of Ireland [2007] IEHC 352
    • Rule against bias was violated where a member of the Complaints and Client Relations Committee of the Law Society had made a strong public statement about overcharging by solicitors.
    • Decision was quashed here.
  • ****Bula Ltd. v Tara Mines (No.6) [2000] 4 IR 142
    • Claimed that two of the three supreme court judges who decided the earlier case had, while in practice as barristers, professional links with some of the respondents (Bula) – This application was heard by a differently constituted court which decided that there were exceptional circumstances to justify the review of the earlier decision.
      • Note: 20 years had lapsed etc.
    • Key factor that there was no bias involved: the lapse of time.
  • ******Keegan v Kilrane [2011] IEHC 516
    • Objective bias was held to be present where a District Court judge presided at a hearing of the District Court where the applicant was convicted of various road traffic offenses, including drink driving. Issue was that until a short time previously, the judge had been a local solicitor and represented the applicant a number of times, some of which were drink related.
    • Again, the HCt was anxious to point out that it was not finding the judge actually or subjectively biased but that a reasonable observer might suspect bias. The cases are clearly very fact specific.
    • It would be misleading to suggest that this case is authority for the proposition that a judge who once represented a party appearing before him or her must always recuse themselves. That is certainly not what the law says.
      • Bingham J noted that careful attention must always be paid to the particular facts. The application is fact-specific.
      • Cited the Australian case of **Livesey v NSW Bar Association
        • The bit about the public perception is the important matter here.
          • There is an uncomfortable reality with this, which is that there are only 60-70 district court judges, and in local areas there is sometimes only 1 – and you get to know common trouble makers etc – and there is no question of keeping the judge in the dark about previous cases – so the question is, whether in fact it should be appropriate for a judge located in the same area for many years, who has heard the same person over and over, to be allowed to convict them.
            • But, we say that judges should have the experience/skills/training relevant to keep an objective mindset in such scenarios. 

–Family Relationships between Judges and Counsel

  • This is an important issue in small jurisdictions such as Ireland because the profession is small and there are generally “legal families”. 
  • Nevertheless, should bias be presumed if a husband, wife, son, daughter etc. appears before a judge?
    • General Rule: No – but there are exceptions.
  • ****O’Reilly v Cassidy [1995] ILRM 306 (SC), 311 (HC)
    • Daughter of judge was counsel for dispute of the renewal of a license for a public house. There was no objection at the beginning or for the most part of the case. However, during a resumed hearing a dispute broke out over bias.
    • Leave was granted by the SCt.
      • Flood J: noted that given the applicant’s very considerable interest in the outcome, and having instructed her counsel to object to the relationship, the judge should possibly have discontinued the matter and either got another judge to hear the case or to take some further step.
      • Flood J in the HCt also held that the test of bias in Ireland is “whether a reasonable person in the position of the plaintiff would reasonably fear the existence of bias in whatever particular form it was alleged to exist.”
        • But also, “there must exist in addition to mere relationship, some element or factor which could (not would) give rise to a fear in the mind of the reasonable man that in the circumstances, the relationship between the counsel and judge could affect the outcome of the case.”
        • In this case, the relationship became “inextricably entangled”.
  • ****Kenny v Trinity College Dublin [2008] 2 IR 40
    • Objecting to plans by TCD to develop new student residences at Trinity Hall. TCD applied to the court to have the proceedings struck out for being frivolous and vexatious. One of the main witnesses in the case was employed by Murray O Laoire Architects. one of the partners in that firm was Mr. Murray, who is a brother of Murray J who presided over the case. A differently constituted SCt granted the application to leave an the bias issue.
    • Fennelly J: citing **Orange Ltd. v Director of Telecoms (No. 2) [2000] 4 IR 159 which approved ***Locabail in England. “The question is whether a reasonable observe might have a reasonable apprehension that a judge, hearing such allegations being made against the firm of architects in which his brother was a member, although that brother was not in any way directly involved in the subject matter of the litigation, might find it difficult to maintain complete objectivity and impartiality.”

Jury Bias

  • ****People (Attorney General) v Singer 1 Frewen 214, [1975] IR 519.
    • Singer was charged with fraud related offences – pertaining to a Stamp Auction.
    • The foreman of the jury that convicted hum had suffered financial loss as a result of the fraud perpetrated by Singer.
    • Held: The verdict of guilty had to be set aside.

–Other Heads of Bias

-Prior Involvement in a Case

  • General rule: Decision-maker should not be involved in more than one level of decision-making in respect of any particular case.
  • ***Heneghan v Western Regional Fisheries Board [1986] ILRM 225
    • Decision was quashed because the person who had initiated proceedings to dismiss the applicant had, in the words of the High Court, acted as “witness, prosecutor, judge, jury and appeal court.”

-Loyalty to an Institution

  • This would arise where, for example, the decision-maker had close personal links with an institutional or corporate party to a dispute.

The Test of Bias

The outcome of any case challenged on grounds of bias will depend on the prevailing definition of bias. We have see the relevant heads of bias and explored the tests for bias on their surface. What is pertinent however is the underlying traits and characteristics of the test, whether it is subjective or objective in nature, what it allows for and what it precludes. Such will be explored now.

If actual or subjective bias had to be shown, few applications would succeed. A less demanding test would require a proof of a real danger of bias.” The ease of this however would still depend on the subjectivity or objectivity associated with “real danger”.

  • Subjective Approach: Would require proof of a danger that the decision-maker was actually biased, without requiring firm evidence as to whether he was or not.
  • Objective Approach: Asking if a reasonable person impugned by the decision or a disinterested but reasonable observer might suspect that justice was no served.

The reasonable apprehension test is the third option – and in many cases is virtually identical to the “real danger” test. This test better reflects the guiding principle in such cases however, that justice should not only be done, but also be seen to be done. It therefore aids in and solidifies the importance of public perception in the identification of bias. 

The tests of bias applied have embodied, historically, a distinct objective element. ***R v Sussex Justices, Ex p. McCarthy [1924] 1 KB 256 at 259 – Lord heart CJ noted that “it is of fundamental importance that justice should not only be done but should manifestly be seen to be done.” – This is in essence the basis of the objective element of the test. Public perception is based on a largely objective understanding of something – allowing for a subjective test, while it may in most cases resonate with the general perceptions of the public, it is too limp a test in really solidifying the importance of the public’s perception of justice. 

In England, in ***R v Gough [1993] AC 646, the Law Lords were of the persuasion that the real danger test was the appropriate one. This was however, resoundly rejected in Australia in ****Webb v The Queen (1993-1994) 181 CLR 41.

In Ireland, Keane CJ noted in ****Orange v Director of Telecomms [2000] 4 IR 159:

  • The test is: “The decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision-maker might have been biased” – where there is an appearance of bias – no actual bias is required.
    • He noted that with pecuniary or material interest cases, bias is presumed without need for further inquiry.
    • Further, Keane CJ recognised the de minimis principle in ***Pinochet as applying in Ireland.

In England, post Gough, the courts have now adopt the ‘reasonable apprehension’ test – having regard to Art. 6 of the ECHR.

  • ***Re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700:
    • “The court must ask whether the circumstances would leas a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the tribunal was biased.”
      • We see here the reconciliation of the reasonable apprehension and reasonable danger tests. 
      • Also note the inadvertent definition of “reasonable” as being a person who is ‘fair-minded’ and ‘informed’.
  • ***Porter v Magill [2002] 2 AC 357
    • Lord Hope said he would delete from the Medicaments case the reference to “real danger” as it no longer served any useful purpose. 

      • Cited Hauschildt v Denmark (1989) 12 EHRR 266 – where the ECtHR noted that what is decisive is whether a fear of bias can be objectively justified.
  • *****Bula v Tara Mines Ltd. (No. 6) 
    • Two of the three SCt judges had prior professional links with the respondents. A differently constituted court found that there were exceptional circumstances to justify the review of the earlier decision. The dealings were the kind one might expect a specialist to have with clients, but none had occurred in the previous 20 years and both counsel had acted both for and against the respondents at different times.
    • It was urged that the court adopt the “real danger” test as set out in Gough. Both Denham J (as she then was) and McGuinness JJ opted for the reasonable apprehension test – to be applied from the standpoints of the reasonable, informed and fair-minded observer. – This was reflected in previous judgments such as Donoghue v County Cork Justices [1910].

Test of Bias under the European Convention on Human Rights (ECHR)

  • The guarantee in Art. 6.1 of the ECHR = Right to a “fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.”
    • The requirements of independence and impartiality form the basis of inspiring public confidence in the administration of justice. 
    • These qualities have a socially instrumental role as well as advancing the rights and interests of persons participating in legal proceedings.

 

 

 

 

 

  • Very important qualification: No application when the kind of bias alleged is pecuniary or in a Pinochet  type case.
  • This is because a decision is automatically quashed when there is pecuniary or Pinochet bias.
  • Test in Ireland – The decision will be set aside on the ground of objective bias where there is a reasonable apprehension or suspicion that the decision maker might have been biased i.e. where it is found that, although there was no actual bias, there is an appearance of bias.
  • From: **Orange v Director of Telecoms per Keane CJ
  • **Dublin Well Woman Center v Ireland
  • Justice (woman) Carle was chair person of the commission for some time. A majority of the commission asked her to write a letter to the Taoiseach years before advocating the rights of the women. Justice said she will not disqualify herself. Went to the SCt and objected to Carle J being a judge on the case. The SCt unanimously decided against her in that case.
  • This is the test – illustrates it well.

 

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