Exministerative Law, Part 2

Returning to the question of the Ministerial change-of-mind, I see that the Attorney General has apparently told the new Minister for the Environment (Gormley)that he can’t revisit the decision of his predecessor (Roche):

In a statement last night, however, Mr Gormley said that Mr Roche had been carrying out a quasi-judicial function, and without a change in material circumstances affecting the case, there was no basis for amending his predecessor’s decision.

I do think this is too easy of a get-out clause. First of all, is the NRA really going to seek judicial review of the Minister’s decision? (Under Section 41 of the Roads Act 1993, the Minister can issue directions to the Authority on any matter). But that’s just a cheeky point, so let’s move on.

With all due respect to the newly-appointed Attorney General (who must have had a great first day in office), and not having seen his full legal advice (us mere mortals only get it filtered through press statements from the Minister), my own knowledge of the law in the area tells me that it is not so clear. For starters, it is a well-understood principle of law that in practice, there are few absolute powers – where ‘discretion’ is stated, it is constrained. East Donegal Co-Operative v AG provides the classic statement.

Therefore, whatever the position, a Minister is not normally free as a bird in the sky – and to put a message about in the media that nothing can be done as a result of legal constraints is a little disingenuous.

The cases dealing with reversal-of-opinion are few and far between, and none are directly on point. For example, in Farrell v AG [1998] 1 IR 203, the decision of the Attorney General himself to direct the coroner (Farrell) to carry out a fresh inquest was quashed; there was not “a scintilla of evidence … for the complete change of mind”. (On an aside and just for fun, the AG received representations from then-Ministers of State Tom Kitt and Eithne Fitzgerald in favour of a new inquest). However, not only does this case not prove that a decision once made cannot be changed (it requires evidence, for sure), it has also been criticised by (for example) Gerard Hogan and David Gwynn Morgan in Administrative Law in Ireland (“a harsh conclusion indeed”), where they argue that the ability of a decision-maker to change his or her mind is a mark of open-mindedness, not irrationality, and that the decision in Farrell misapplies the familiar criteria for unreasonableness from O’Keeffe v An Bord Pleanála. (For the record, I am a critic of O’Keeffe, but I’ll run with it for now).

There is a more recent case on the table – Eviston v DPP [2002] IESC 62, where the fact that the DPP overruled a previous decision not to prosecute was challenged.

From the headnote:

(5) The trial judge was wrong in holding that the decision was so irrational as to require its being set aside. That was not a conclusion which could have been reached as a matter of law. The respondent [DPP], as a matter of law, was entitled to reverse a decision already arrived at not to prosecute, even in the absence of new evidence or different factors, where he was of the view that his original decision was erroneous.

(8) It was open to the respondent to review his earlier decision and to arrive at a different conclusion, even in the absence of any new evidence or any change of circumstances, other than the intervention of the family of the deceased. The distinguishing feature of the case was the communication by the respondent of a decision not to prosecute to the person concerned, followed by a reversal of that decision without any change of circumstance or any new evidence having come to light. The decision of the respondent was prima facie reviewable by the High Court on the ground that fair procedures had not been observed.

Confusing, indeed, and made worse by the fact that although it looks like the DPP is about to ‘win’, the final result is that the DPP ‘loses’ due to the procedures followed in this particular case.

I was also interested to read a decision of the English courts in a controversial case, R v Health Secretary ex parte US Tobacco [1992] 1 QB 353 where a factory was set up to manufacture ‘oral snuff’ based on some assurances from the Department of Health, who subsequently banned its sale!

If the Secretary of State concluded on rational grounds that a policy change was required and in the public interest, his discretion could not be fettered by moral obligations to (the company) deriving from his earlier favourable treatment of them. It would be absurd to suggest that some moral commitment to a single company should prevail over the public interest. (Lord Justice Taylor, p 369)

So in conclusion, the Minister for the Environment may well be (sort of) correct in saying that he will not be able to overturn his predecessor’s decision – but he is not prevented from reviewing it or affirmatively blocked from changing it.

At best, the law is muddled, and even if there was a challenge, the State has a very good record of defending Ministerial decisions under administrative law. In particular, I would argue that in a challenge for unreasonableness, such a case would be at the ‘deference’ end of the spectrum – i.e. it is not a case where the human rights of an accused person, for example, are under threat. (This is the sub-Wednesbury v super-Wednesbury idea that my tutorial students from last year will be familiar with!) Therefore, it appears to me (again only on the strength of the reports) that the AG may be taking an extremely cautious position – and I wonder whether this caution (and respect for strong anti-executive approaches to administrative and constitutional law) will be adopted by all Ministers, or is it a special one for this particular, politically controversial issue?

As a parting shot, Hogan and Morgan also note that in Minister for Agriculture v Gallagher [1941] IR 278, where the High Court (back in the 1940s) found that the Minister did not have the power to revoke a certificate that had been issued, was decided in ignorance of the provisions of the then-Interpretation Act (1937), which contains similar provisions to the current Act. So we’re following a good tradition here, eh?

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