The Saga of Sufficient Scrutiny of Administrative Action Applied by the Irish Judiciary
Introduction
Ireland’s current position on the judicial scrutiny of administrative action, like many aspects of the public law domain, has been shaped in the midst and aftermath of the global pandemic. In answering the question of whether the Irish courts apply sufficient scrutiny to administrative action, in light of the confusion caused by the Meadows case judgment in 2010 and the court’s interweaving of proportionality (the requirement that advantages due to limiting a right are not outweighed by the disadvantages to exercise that right) with unreasonableness (any action or result that exceeds a reasonable expectation or refers to anything beyond what would be considered “common sense”), the overwhelming reply would be that they don’t.1 However, in 2022, with structured proportionality being adopted for judicial review cases concerning rights in Burke2, there is much to suggest that times have changed. By requiring judges to base their analysis on the criteria of the Heaney3 test, this not only allows for more transparent decision-making, but structured proportionality allows the court to ensure compliance with the European Convention and to move past the insufficiency of Meadows. Whilst acknowledging that the standards in O’Keeffe4 and Keegan5, still apply to cases not concerning rights, reference to the importance of expertise and curial deference seems to suggest that the law can now provide for sufficient scrutiny of both rights based and (tentatively) non-rights-based cases.
Burke and Structured Proportionality
The landmark case of Burke determined that the standard of judicial scrutiny for executive decisions ought to be equal to the standard applied to the legislature. As administrative decision-makers can derive power from multiple sources, Burke concerned a special governmental power under the Constitution rather than one regulated by statute. Under these circumstances, the question was how the court could go about reviewing this power. The court
claimed that they were reluctant to rely on the Keegan standard of unreasonableness, and instead argued for a standard of clear disregard which is often used to review exercises of non-statutory executive power in areas like socio-economic policy, foreign affairs, and national security.6 The approach that the court should not interfere with exercises of executive power unless there is a clear disregard of the Constitution, which applies here as the calculated grade scheme, was adopted by the government acting collectively.7 The concern is that the exercise of executive power in Irish law is rare and ill-defined and that this threshold would be almost impossible to meet.
Accordingly, the Supreme Court in Burke did not find in favour of the state, claiming that the deferential clear disregard standard would only be justified for high policy decisions that fall solely within the remit of the Executive. Here, as the challenge was not directed to the government’s decision to establish the overall policy scheme but rather at the plaintiff’s blanket exclusion, the extremely deferential standard would not have given sufficient weight to the plaintiff’s constitutional rights.8 Hence, for administrative decisions affecting rights, the court saw no justification as to why there should be different standards of judicial scrutiny for the administration of a scheme established via non-statutory executive power and for similar decisions affecting the same rights taken by executive officials under statutory authority granted by the Oireachtas.9 Thus, with the legislative standard being understood as the Heaney test, the decision signaled that Ireland had finally adopted a structured proportionality test, reaching the same standard as previously adopted by the UK. With Burke adding some much-needed context to the confusion in the wake of Meadows, we now have a dual standard, with structured proportionality applying where constitutional rights or rights under the European Convention on Human Rights Act are at issue, and with Keegan and O’Keeffe applying in cases that do not interfere with rights.10 As will be expanded on, Burke and structured proportionality is a welcome development, one which allows for greater judicial scrutiny of administrative action interfering with rights.
Benefits of Moving Past Meadows
In the decade prior to Burke, the concern was that the majority in Meadows established proportionality as a subcategory of the Keegan reasonableness. At present, it is thought that Burke and structured proportionality provides more transparent reasoning than the looser formulations used in Meadows. The benefit is that proportionality review is more precise due to the obligation on judges to pinpoint specific criteria which is not only more structured and transparent but avoids judgments based on policy or personal preference.11 Similarly, judicial reasoning on these criteria safeguards against merits-based review and combats fears of judicial overreach. Further, unreasonableness in Meadows has been described as an almost impossible standard as it provided that the Irish courts may only intervene where the administrative decision-maker has gone completely and inexplicably insane, yet the reality is that this standard is hardly ever met.12, What is more, applications of structured proportionality can avail of these benefits without major concerns in the judicial usurpation of the administrative role.13
Importantly, prior to Burke, whilst the Irish courts had adopted proportionality for rights read into Irish law through the European Convention on Human Rights Act 2003, the same could not be said for domestic rights under the Constitution. Hence, another benefit of Burke is that it remedied this distinction between constitutional rights and EU Convention rights in terms of proportionality.14 As Meadows had many of the frailties of the English cases of Smith and Grady15, Burke has now alleviated fears that Ireland was in breach of the Convention.16
Impact of Burke: Immigration Cases and When Rights are at Play
In the context of asylum seekers, the confusion of Meadows in terms of judicial review was in large part due to the ambiguity surrounding whether the proportionality test should be applied by the administrative decision maker or the court itself. Although this seems reasonable for immigration cases considering human rights issues17, it is fair to say that expecting all decision-makers to conduct their own balancing of rights is unrealistic given the constraints on resources. Both FE v Minister for Justice18 and AMS v Minister for Justice19 deemed proportionality to be assessed by the decision maker, and that the Keegan irrationality test can be applied by the courts upon difficulties in assessment.20 However, non-immigration cases have painted a different story. McSorley v Minister for Education21 examined the real effect of a decision on fundamental rights rather than the mere rationality of the decision maker’s consideration for those rights.22 Similarly, the court in Lattimore23, Corbally24, and Fortune25, were prepared to conduct their own proportionality analysis, as a substantive outcome to be achieved. Structured proportionality and the Heaney test now confirm this approach and allow for greater judicial scrutiny.
As mentioned, Burke and structured proportionality are important in that they ensure compliance with the European Convention, a needed development given the concerning tendency of judges to still apply forms of ‘anxious scrutiny’ despite its rejection in Meadows.26 For instance, Humphrey J’s highly deferential approach to reasonableness review in the X.X
case27 was totally opposed to the rigorous scrutiny applied by Faherty J In PBN28. The latter interpretation is likely to be compatible with the requirements of the ECHR whilst the former fails to provide sufficient scrutiny.29 Faherty J concluded that scrutiny was warranted in judicial review of a deportation decision and the judge made reference to “heightened scrutiny.”30 Additionally, Burke puts an end to the slew of post-Meadows cases that re-defined proportionality in Keegan and O’Keeffe terms, cases such as ISOF, where the court framed “unreasonableness” as a “lack of proportionality”.31 Not only was this inference confusing but it also established an excessively onerous threshold. Structured proportionality will not be as difficult to claim, which will allow for greater freedom for judicial scrutiny.
Curial Deference and When no Rights are at Issue
Still, superior courts ought to employ caution and diligence when dealing with judicial review. This is due to the fear of becoming an appellate court for all administrative action. With public bodies wielding monumental power over the individual, deference must strike a balance between pragmatic acquiescence and principled enforcement. Thus, the role of deference is to set forth appropriate judicial conduct and to prevent judicial overreach, by reference to institutional competence, expertise, and democratic legitimacy.32 While this does not allow the courts to go beyond reviewing these powers, it is important for courts to strike a balance between acknowledging their own institutional limitations whilst not surrendering their role in protecting rights by delegating the decision to another branch.33 Due to constitutional provision, courts have been afforded a strong constitutional position. This has led to a greater focus on expertise rather than institutional competence as the rationale for judicial deference.34
A balance must be struck if excess deference is to be applied to areas of special skill or knowledge. If not, courts would be able to avoid rigorous scrutiny by applying the O’Keeffe test.35 On this point, Hogan J stated in the Camara case that reliance on expertise without explicit reference to the nature of the rights at stake, can lead to curial deference overstepping the mark.
In O’Keeffe, the court decided that planning questions are placed firmly within the jurisdiction of An Bord Pleanála due to their special skill and experience. The argument here is that in the modern age of highly complex and specialised regulatory regimes, expert administrative tribunals are often better equipped to address these issues and that courts, in this instance, should exercise a heightened judicial restraint.36 Following Burke, O’Keeffe unreasonableness can now only be maintained as a ground for review to be invoked exclusively where its high standard is met in cases that do not involve human rights.37 While this threshold is not as effective as structured proportionality and perhaps could be relaxed in the future, a positive view would be that O’Keeffe allows for a slight sense of clarity, respects the separation of powers, and permits accountability.38 In the future, an attempt could be made to better mold O’Keeffe to situations facing the court, rather than to risk unduly extending the principles of judicial review.39 If one were to deem structured proportionality as a good standard of judicial scrutiny, it could be said that O’Keeffe is a lesser but acceptable standard of scrutiny given the importance of the doctrine of curial deference, setting out the judicial practice of restraint in terms of decisions made by administrative bodies.40
Conclusion
Overall, the Irish courts apply sufficient scrutiny to rights-based cases, and whilst the threshold remains high for non-rights cases, the importance of curial deference needs to be a consideration. Through analysis of immigration cases post-Meadows, Burke and the application of structured proportionality, clarity is provided on the role of the judiciary and compliance with the European Convention on Human Rights in ensured. With regards to non-rights cases, a greater focus has been placed on expertise rather than institutional competence or democratic legitimacy as the rationale for judicial decisions. Although the threshold set by O’Keeffe remains high, and perhaps should be lowered, an optimistic explanation would be that it respects the separation of powers and prevents judicial overreaching. Nonetheless, Burke is a welcome development and has added much-needed clarity to this area of law.
Bibliography:
1. Meadows v Minister for Justice, Equality and Law Reform [2010] IESC 3.
2. Burke v The Minister for Education [2022] IESC 1.
3. Heaney v Ireland [1994] 3 IR 593.
4. O’Keeffe v An Bord Pleanála [1993] 1 I.R. 39.
5. State (Keegan) v Stardust Victims’ Compensation Tribunal [1986] I.R. 642
6. Conor Casey, “Ireland - superior courts address important separation of powers cases” (2022) P.L. 2022, Oct, 694-697.
7. Bunreacht na hÉireann.
8. Casey (n6).
9. ibid.
10. European Convention on Human Rights, 2003.
11. Hilary Biehler and Catherine Donnelly, “Proportionality in the Irish courts: the need for guidance” (2014) EHRLR 3, 272- 283.
12. ibid.
13. Hilary Delany and Catherine Donnelly, "The Irish Supreme Court Inches Towards Proportionality Review" (2011) Public Law 9.
14. ibid.
15. Smith and Grady v United Kingdom (1999) 29 EHRR 493.
16. Biehler and Donnelly (n11).
17. Alan Brady, “Meadows and proportionality in judicial review - where are we now?” 27th February 2017, Bar Council of Ireland.
18. FE v Minister for Justice [2014] IEHC 62.
19. AMS v Minister for Justice [2014] IESC 65.
20. Brady (n16).
21. McSorley v Minister for Education and Skills [2012] IEHC 201
22. Brady (n16).
23. Lattimore v Dublin City Council [2014] IEHC 233.
24. Corbally v The Medical Council [2013] IEHC 500.
25. Fortune v Wicklow Country Council [2013] IEHC 255.
26. Meadows (n1)
27. X.X. v Minister for Justice and Equality [2016] IEHC 377.
28. PBN v Minister for Justice and Equality [2016] IEHC 316.
29. Darragh Coffey, “Standards of scrutiny in judicial review of deportation decisions involving Article 3 ECHR: X.X. v Minister for Justice and Equality” (2017) The Irish Jurist Vol 57, pp. 144-161.
30. PBN (n28)
31. ISOF v Minister for Justice, Equality and Law Reform (No.2) [2010] IEHC 457.
32. Ross Malvery, “Towards a constitutional understanding of administrative judicial review in Ireland” (2022) Irish Law Times, 40(10), 153-156.
33. Jowell, "Judicial Deference: Servility, Civility or Institutional Capacity" (2003) Public Law 592.
34. Hillary Biehler, "Curial Deference in the Context of the Judicial Review of Administrative Action Post-Meadows" (2013) 49 Ir. Jur. 29.
35. Delany and Donnelly (n13).
36. Biehler (n34).
37. Diarmuid O’Leary, “Wednesbury unreasonableness: a jack of all trades or a jack that should remain in the box?” (2020) Irish Law Times, 38(10), 148-152.
38. ibid.
39. ibid.
40. Paul Daly, ‘Curial Deference, Irish style’, Administrative Law Matters, 1st August 2012