Wednesday, 12 December 2012

The Irish Supreme Court on the Right to Reasons in Administrative Law

In his judgment in Meadows v. Minister for Justice, [2010] IESC 3, Murray C.J. suggested that a general right to reasons for administrative decisions should be recognized in Irish law. In its decision last week in Mallak v. Minister for Justice, [2012] IESC 59, the Irish Supreme Court did not quite go that far, but its observations on the issue are far-reaching and important. Unfortunately, its observations are also somewhat muddled.

The applicant, a Syrian lawyer long resident in Ireland as a refugee, had applied for a certificate of naturalization, a first step towards an application for Irish citizenship. The Minister refused, giving no reasons, but suggesting that the applicant could apply again. Meanwhile, the Minister granted a certificate of naturalization to the applicant's wife. Quite a strange position for the applicant to find himself in.

There is a line of English cases in which reasons are required to be given where a decision is "aberrant". The Court could have resolved this case on that basis, but instead went further. How much further the Court went is not entirely clear.

Fennelly J. first addressed the argument of the Minister that because the power to grant a certificate of naturalization is expressed to be in his "absolute discretion", no reasons need be given. This argument happily received short shrift:
45...It does not follow from the fact that a decision is made at the absolute discretion of the decision-maker, here the Minister, that he has no reason for making it, since that would be to permit him to exercise it arbitrarily or capriciously. Once it is accepted that there must be a reason for a decision, the characterisation of the Minister’s discretion as absolute provides no justification for the suggestion that he is dispensed from observance of such requirements of the rules of natural and constitutional justice as would otherwise apply.
The Minister's next argument was that he was extending a privilege, not a right, and that the scope of judicial review should be narrow. This line of defence was also easily breached
47. The mere fact that a person in the position of the appellant is seeking access to a privilege does not affect the extent of his right to have his application considered in accordance with law or to apply to the courts for redress. 
Fennelly J. then moved on to consider the contours of the right to reasons. The Irish courts had previously recognized that the absence of reasons can lead to a decision being quashed for unreasonableness (State (Daly) v. Minister for Agriculture); that reasons are necessary where a right of appeal is provided for (Pok Sun Shum v. Ireland); and that reasons should be provided to an applicant who might want to re-apply for a licence (International Fishing Vessels v. Minister for the Marine). In Fennelly J.'s terms this amounted to "a significant range of circumstances" (at para. 63).

Fennelly J. then commented expansively:

64. In the present case, the applicant points to the effective invitation to the appellant to “reapply for the grant of a certificate of naturalisation at any time.” That statement might reasonably be read as implying that whatever reason the Minister had for refusing the certificate of naturalisation was not of such importance or of such a permanent character as to deprive him of hope that a future application would be successful. While, therefore, the invitation is, to some extent, in ease of the appellant, it is impossible for the appellant to address the Minister’s concerns and thus to make an effective application when he is in complete ignorance of the Minister’s concerns.
65. More fundamentally, and for the same reason, it is not possible for the appellant, without knowing the Minister’s reason for refusal, to ascertain whether he has a ground for applying for judicial review and, by extension, not possible for the courts effectively to exercise their power of judicial review. [My emphasis.]
Pushed to its logical conclusion, this holding would mean that an individual has a right to reasons for a decision whenever there is a right to judicial review. One must be careful not to make sweeping statements, but in respect of almost all decisions which have an impact on an individual, judicial review will be available. If paragraph 65 is read in isolation, its effects will be dramatic.

Fennelly J. added two qualifications, however. First up was an old perennial: the idea that an individual who "well knew" the basis for a decision is entitled to reduced procedural protection.

66. In the present state of evolution of our law, it is not easy to conceive of a decision-maker being dispensed from giving an explanation either of the decision or of the decision-making process at some stage. The most obvious means of achieving fairness is for reasons to accompany the decision. However, it is not a matter of complying with a formal rule: the underlying objective is the attainment of fairness in the process. If the process is fair, open and transparent and the affected person has been enabled to respond to the concerns of the decision-maker, there may be situations where the reasons for the decision are obvious and that effective judicial review is not precluded. [My emphasis.]
The second qualification is somewhat obscure. Indeed, I am not even sure it qualifies as a qualification. Fennelly J. put it in the following terms:
74. It might be thought unnecessary to call in aid this parallel development of the law in the United Kingdom. The developing jurisprudence of our own courts provides compelling evidence that, at this point, it must be unusual for a decision maker to be permitted to refuse to give reasons. The reason is obvious. In the absence of any reasons, it is simply not possible for the applicant to make a judgment as to whether he has a ground for applying for a judicial review of the substance of the decision and, for the same reason, for the court to exercise its power. At the very least, the decision maker must be able to justify the refusal. No attempt has been made to do so in the present case and I believe it would be wrong to speculate about cases in which the courts might be persuaded to accept such justification. [My emphasis.]
So, it will be "unusual" for a decision-maker to be able to refuse to give reasons. A decision-maker "must be able to justify" himself or herself in such circumstances.

This either means (a) that where the decision-maker claims the applicant "well knew" the reasons for decision, the situation is "unusual" and the decision-maker must "justify the refusal"; or (b) that there are other decisions which by their nature are "unusual" -- old favourites like national security and economic policy, perhaps -- and may not require reasons, as long as the refusal can be justified.

To further cloud the issues, Fennelly J. then seemed to conflate the applicant's right to seek judicial review with his right to re-apply for a naturalization certificate:

76...In my view, the Minister was under a duty to provide the appellant with the reasons for his decision to refuse his application for naturalisation. His failure to do so deprived the appellant any meaningful opportunity either to make a new application for naturalisation or to challenge the decision on substantive grounds. If reasons had been provided, it might well have been possible for the appellant to make relevant representations when making a new application.
Read narrowly, and in the light of this paragraph, the ratio decidendi of the case might be that the right to reasons attaches only to situations in which the applicant can re-apply for whichever right or privilege he or she applied for in the first place. The more expansive comments are obiter.

Does one follow Fennelly J.'s sweeping statements of principle, pay more attention to the apparent qualifications, or simply read the decision narrowly? The decision itself seems to leave each of these options open. It will be interesting to see what ultimately comes of Mallak.

If you made it this far, you may also be interested in Mark Elliott's recent article, "Has the Common Law Duty to Give Reasons Come of Age Yet?" [2011] PL 56.

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