Fair Procedures in Irish Administrative Law: Towards a Constitutional Duty to Act Fairly in Dellway...

2011] i

Dublin University Law Journal

2 0 1 1 VOLUME 34

in as soc iat ion with the Law School , Trin i ty Col lege , Dublin

FAIR PROCEDURES IN IRISH ADMINISTRATIVE LAW: TOWARD A CONSTITUTIONAL DUTY

TO ACT FARILY IN DELLWAY INVESTMENTS V NAMA

DAVID KENNY*

The case of Dellway Investments Ltd v National Asset Management Agency was one of the great sagas of Irish law.1 The case involved a challenge to the constitutionality and practices of the National Asset Management Agency (NAMA), the exceptional statutory body set up by the Irish government in late 2009 to acquire certain loans from Irish banks. The Agency’s acquisition and management of those loans was to assist these banks in clearing their balance sheets of potentially problematic assets, and help with meeting strict capital requirements to ensure the soundness of the banks.

When the dust has cleared, it is likely that the most enduring legacy of the Dellway case will be its impact on constitutional justice and the right to fair procedures. In the second major Supreme Court ruling in this case, the

procedures. The Supreme Court unanimously found in favour of the applicants, saying that they were entitled to fair procedures in respect of the decision of NAMA to acquire loans to which they were parties. As a result, the NAMA Act 2009 was construed in accordance with the Constitution to mandate that NAMA grant fair procedures to the appellants, allowing them to make representations before a decision to acquire their loans was made. In this article, I want to place the Dellway case in its broader constitutional and administrative law context.

The Court in Dellway attempted to resolve one of the least developed areas of Irish constitutional and administrative law: what triggers the constitutional

* PhD candidate, Trinity College Dublin. The author would like to thank Noel McGrath, Alan Brady, Rachael Walsh and Andrea Mulligan for their comments on earlier drafts. Any errors and ommissions are the author’s.

Court and three in the Supreme Court: [2011] IESC 14 (12 April 2011); [2011] IESC 4 (3 February 2011); 9 February 2011, Murray CJ, ex tempore

second written judgment of the Supreme Court, delivered on 12 April 2011. All page and paragraph numbers are taken from the printed judgments published by the Court on the day of the judgment. These are available on www.supremecourt.ie.

Dublin University Law Journal [Vol 34

position on the issue, taking a restrictive view on what triggered this element of constitutional justice.2

to interfere with a constitutional right would the constitutional right to fair procedures be brought into play. The Supreme Court took a broader position

from NAMA in this case. This article has four parts. First, the background to this issue will be

discussed, and the Irish and British developments in administrative law fair procedures will be outlined. Second, the factual background to the Dellway

major views on the central fair procedures point will be examined in detail, and their potential effect on administrative law analysed. I will then argue for one of these views to be followed in future cases for Irish administrative law to develop in a clear and consistent fashion.

There are two main views on the fair procedures issue in the Supreme Court.

to bring Irish administrative law up to speed with its counterpart in Britain, and usefully deploys the Constitution to strengthen the protection of fair procedures.

adopt: a constitutional duty to act fairly, similar to the approach seen elsewhere in the common law world, but bolstered by the Constitution. Fennelly J, on the

as to how the constitutional right to fair procedures applies when constitutional rights are not affected, reopening issues about the scope of constitutional justice that were long thought resolved.

I will suggest that both judges may have wished to achieve the same end: to modernise Irish administrative law on fair procedures and do away with

judgment achieves this, and I believe that his model should therefore prevail.

PART I: FAIR PROCEDURES IN IRELAND AND THE UNITED KINGDOM

Before examining the Dellway case, it is necessary to canvass the law on fair procedures in the United Kingdom and Ireland so that the issues in the case,

Traditionally, in Ireland and the United Kingdom, fair procedures were guaranteed in administrative law by the common law principle of natural justice. The two central tenets of natural justice are the principle of audi alteram partem,

2011] Fair Procedures in Irish Administrative Law 49

which provides that administrative bodies allow those affected by a decision to be heard before the decision is made, and nemo iudex in causa sua, which dealt with personal interests and bias of decision makers. Natural justice underwent a

th century, but the shift in each jurisdiction was rather different.

England and Wales: A duty to act fairly

of natural justice. The courts gradually removed the cumbersome categorical limitations that plagued natural justice, and developed a broad duty to act fairly.

of De Smith’s Judicial Review propose that most cases in this area suggest a general duty to act fairly on all administrators; that is particularly acute when the decision can adversely affect individuals’ interests.3

Before this development, a distinction was drawn between bodies that had to act “judicially” and those that exercised “legislative” or “administrative” functions.4

trappings of adjudication.” A quasi judicial function was an administrative process that:

contains certain elements of a judicial decision but which differs from

implemented.

A similarly problematic distinction was that between rights and privileges, which

3. See Lord Wolf, Jeffery Jowell, and Andrew LeSueur, De Smith’s Judicial Review th De Smith.”

R v Leman Street Police Station Inspector Ex Parte Venicoff

attracted no entitlement to natural justice as the power was executive in nature, attracting no duty to act judicially. See De SmithDe Smithdisputes conclusively; having more than a consultative, advisory or preliminary role in dispute resolution; functioning like a court by sitting in public, imposing sanctions, etc; and resolving cases between parties as to their respective entitlements. A full account of this can be found in De Smith

University of Toronto Law Journal


In focusing on these categorical distinctions, the courts lost sight of the fact that before this, natural justice had arisen due to nature of the effects and consequences rather than the form of the decision. The judicial analogy and the rights/privileges distinction gradually fell away, starting with the landmark case of Ridge v Baldwin.9

chief constable for statutory cause required the provision of fair procedures, in the form of prior notice of the charge and an opportunity to answer it, despite the fact that the statute was silent on whether such procedures should be offered. Lord Reid’s landmark judgment held that natural justice could not be limited to cases where there was an analogy to judicial functions, and instead that any decision taken that would affect the rights of individuals, or determine what those rights were. What would have been regarded as purely administrative decisions were now potentially subject to natural justice. This development was widely welcomed, with the former distinction soon being branded as “heresy” by Lord Denning.10

Shortly thereafter, the rights/privileges distinction similarly began to wane. In R v Gaming Board ex Parte Benaim and Khaida Lord Denning held that the renewal of a gaming licence could not be denied on the grounds of the

to the applicant, and provision of an opportunity to respond.11 This was so

under the distinction drawn in the previous case law. This development was also broadly welcomed, as the distinction was thought to be based on “sterile reasoning.”12

During this period of liberalisation, when the stilted categories that limited natural justice were removed, a new vocabulary developed to describe administrative fair procedures. Though it did not replace the language of natural

as the “duty to act fairly.” It derived from the case of Re HK where Lord Parker

Nakkuda Ali v JaynaratneController of Textiles, when cancelling a textile licence, was not subject to natural justice as he was simply “taking executive action to withdraw a privilege.” The executive nature of the power meant he was not acting judicially, but in any event, the licence holder was not entitled to a licence by right, and so the exercise of the power merely concerned privileges rather than rights. De Smith

10. R v Gaming Board ex parte Benaim and Khaida11. Ibid.12. MLR

2011] Fair Procedures in Irish Administrative Law

13 This was essentially a better way to express the idea of natural justice in its new liberalised form. Lord Diplock said a body providing natural justice to a person means “no more than to act fairly towards him in

14

The duty to act fairly is broader than just the fair procedures: it encompasses rules against bias derived from the old principle of nemo iudex in causa sua as well as being the backbone of legitimate expectations jurisprudence. It is also a duty that exists beyond those procedures that might be owed to any individual to suggest that fairness should be observed by all decision makers at all times. A public body should always act fairly, in the absence of a requirement to the contrary, whether or not there is a particular individual whose interests are being affected by the action. It is rather that when interests are affected, the problems are most acute and most compelling, and particular fair procedures must be offered lest the duty be breached. The broadness of the concept is accommodated by a sliding scale of fair procedures. The concept of fairness

can take account of the scale of the potential impact on a person, their remoteness from the decision, the nature of the decision, etc. The procedures required can

range from mere consultation at the lower end, upwards through an entitlement to make written representations, to make oral representations,

at the other extreme.

of administrative law in England and Wales for almost half a century.

Ireland: natural justice and constitutional justice

England was not alone in expanding natural justice into a duty to act fairly. Similar developments took place in other common law countries.19 Ireland, however, did not follow at the same pace or in the same manner. Developments in

13.14. O’Reilly v Mackman

De Smith See ibid Ibid Ibid.

19. See for example the Canadian case Martineau v Matsqui Disciplinary Board

disfavoured the rights/privileges distinction. Such developments can also be seen in New Zealand and Australia. See De Smith


Irish administrative law on fair procedures have been slower, and have happened under the rubric of constitutional justice.

In Ireland, natural justice took on a constitutional character.20 This began with the case of McDonald v Bord na gCon,21 where Walsh J said that the two established principles of common law natural justice had been incorporated into the Constitution, giving rise to the term “constitutional justice.” Constitutional justice was also said to include more than these two ideas, but Walsh J did not elaborate on what else the concept might encompass.22 Soon, a constitutional right to fair procedures was recognised under Article 40.3, integrating fair procedures into the constitutional order.23

As this process continued, some doubt was expressed as to whether constitutional justice should fully incorporate natural justice. In State (Gleeson) v Minister for Defence, Kenny J said the terms were not synonymous: “There must be a constitutional context before the concept of constitutional justice becomes applicable.”24 Without a constitutional right at play, natural justice

natural justice were to decide the case, it would be those principles as “subsumed or illuminated by constitutional provisions.” This suggested a third category of “constitutional natural justice,” an augmented version of the old common

go so far as constitutional justice proper. This distinction was later rejected in Garvey v Ireland and then later State (Furey) v Minister for

Justice, where McCarthy J said:

I do not hold the view that appears to underlie the obiter dicta in Gleeson’s case to the effect that natural justice is something independent of the

existed the Constitution are now part of the human rights guaranteed by the Constitution.

From this point onwards, it was thought that natural justice was fully encompassed by constitutional justice, and protected by the mechanism of constitutional rights.

The distinction between constitutional and natural justice was cumbersome and confusing. It was never clearly articulated how the standards were to be

20. For a brief overview of this development, see Conleth Bradley, Judicial Review (Round

21.22. Ibid, at 242.23. See O’Dalaigh CJ in Re Haughey 24. State (Gleeson) v Minister for Defence

Ibid


separated, nor how or whether the Constitution might have changed the rules of natural justice to form a sort of constitutional natural justice. No compelling arguments were ever put forward to explain why the personal right to fair procedures recognised under Article 40.3 should apply only when another constitutional right was at risk. It was a pointless distinction, like the judicial function analogy or the distinction between rights and privileges. As with the demise of those categories in England, the seeming end of this separation was welcomed. Casey said the distinction between natural and constitutional justice

Garvey case would “write to this confusion.” Dellway case raises the possibility that this cumbersome distinction

may once more haunt this overlap of constitutional and administrative law.The problem is that constitutional justice was not as conceptually coherent

as a duty to act fairly, and rather than develop a coherent principle to underlie developments in this area, the Irish jurisprudence proceeded by way of piecemeal reform.

29 In reality, the

distinction being abolished outright. In State (Williams) v Army Pensions Board, the Supreme Court held that

fair procedures were owed where the Board was making a determination as to

manner reminiscent of the English case law on the duty to act fairly, said that even though the Board’s functions were administrative in nature, “even purely administrative acts … may be affected by the requirements of natural and constitutional justice.”30 The Supreme Court declined to adopt that approach,

judicial:

Their functions, which are conclusively adjudicative after consideration of the evidence tendered, seem to me to have a judicial rather than an

31

The Supreme Court chose to classify the application of precise statutory tests as judicial rather than embrace a broader test for fair procedures. The judicial

DULJ

29. Administrative Law in Ireland, (4th ed, Round

30.31.


analogy was not clearly abandoned and replaced by a duty to act fairly. Instead, it was rendered increasingly formalistic, as decisions that were previously thought

Similarly, the rights/privileges distinction, so long defunct in Great Britain, is only “probably” not part of contemporary Irish law.32 In a number of cases, privileges were accepted to attract fair procedures, from licensing, to concessionary procedures that there was no entitlement to as of right.33 Though the distinction does not seem to hold a great deal of weight, there is no reasoned or articulated departure from the stilted categorisation.

of the British position.34 This may be true in respect of results, but the Irish approach has lacked an underlying principle to guide its development and explain and justify these results. Constitutional justice could be the rubric under which

as a constitutional duty to act fairly. McCarthy J said that constitutional justice required “fairness in all of the circumstances.” Costello P said that constitutional justice “imposes a constitutional duty on a decision making authority to apply fair procedures in the exercise of its statutory powers and functions.”believed that constitutional justice would develop into a freestanding constitution entitlement to fairness. The trajectory of constitutional justice seemed to be toward a broad constitutional duty to act fairly.

The Dellway case was the opportunity for this process to be completed:

32.33. Barry v Sentence Review Group

where Butler J held that the fact that the review group was established on a “purely concessionary, ex gratia basis” and that the applicant had no right to sentence review did note mean that “the applicant is not entitled to fair procedures.” They also cite for this purpose Clarke v Judge Hoganof a District Court judge. Licensing decisions have also attracted fair procedures; see Tiernan v Northwestern Regional Fisheries International Fishing Vessels v Minister for the Marine

proceedings, and fair procedures were offered for that reason.34.

International Vessels v Minister for the Marine (No 2) [1991] 2 IR 93, at 102 (SC). McCormack v Garda Siochana Complaints Board

19 Ir Jur Gleeson case, saying:

procedures, and did not have to show that some other constitutional right (eg the right to earn a livelihood) has been infringed before the principles of constitutional justice would be applicable to the facts of the case.

fair procedures without any constitutional rights underlying it.


under a coherent, strong concept of constitutional justice, similar to the duty

seems to accomplish this. Fennelly J may have intended to achieve the same effect. Instead, his opinion fails to achieve this unity and clarity, and instead threatens to sever constitutional and natural justice, and take a regressive step in the development of administrative law. It is to this case that we now turn our attention.

PART II: THE DELLWAY CASE

The applicants, Mr Patrick McKillen and his companies, collectively own a

There were loans relating to these properties held by Irish banks which came within, and had chosen to opt into, the NAMA scheme. These loans amounted

Mr McKillen claimed that his loans were not to any degree impaired and were performing. It was noted by almost all the judges in

of the interest payments on his loans. It was further accepted that his property portfolio contained hotels, shopping centres and restaurants in cities around the

39 An overwhelming majority of the properties were let, mostly to “blue chip tenants

40 The income from the per annum)

annual cost of service of the interest on loans. This, Mr McKillen contended, made his loans an inappropriate target for NAMA acquisition.

On 11 and 14 December 2009, several individuals who were connected

McKillen was not given any opportunity to participate in this decision, and make submissions as to whether or not the loans ought to be acquired by NAMA. Indeed, he did not even become aware that NAMA had taken this decision until long after the fact. Mr McKillen objected to the acquisition of his loans on a number of grounds:

1. that NAMA had not had regard to all relevant considerations;2. that NAMA’s acquisition of loans amounted to state aid in contravention

3. that the NAMA Act unconstitutionally restricted his property rights;4. that the decision taken to acquire Mr McKillen’s loans was invalid,

having been made before NAMA was legally constituted;

39. [2011] IESC 14, Fennelly J, at [20].40. Ibid


McKillen had the opportunity to make submissions.

41 On appeal, the Supreme Court gave judgment on two of the issues on 3 February 2011: the Court found against Mr McKillen on the EU state aid issue, but found in his favour in respect of the invalidity of the initial decision. The decision was taken on 11 and 14 December 2009; NAMA did not come into existence until 21 December 2009. The decision was therefore a legal nullity.42 The Court accepted that the decision could have been adopted by NAMA once properly constituted but,

mootness of the outstanding issues. In an ex tempore judgment on 9 February 2011, the Court decided that, since no valid decision had been made, the issue as to relevant considerations was moot.43

would be decided by the Court: since Mr McKillen could be subject to a new decision by NAMA, and NAMA had expressed intention to reacquire Mr McKillan’s loans, the fair procedures argument was not rendered moot. It was on this point, and an abstract constitutional argument44 that the Supreme Court delivered judgment on 12 April 2011.

Mr McKillen’s reasons for wanting to make submissions to NAMA are worth stating explicitly. Initially, he wished to suggest that some of the loans NAMA intended to acquire were not eligible bank assets within the meaning of the NAMA Act, but he subsequently abandoned this contention, and accepted

not use its discretion to acquire his loans, and wished to make representations about the valuations of his properties.

The rights at risk

with in the event that NAMA acquired his loans. The Supreme Court disagreed. This article will focus in detail on the manner in which that Court diverged

41.and Kearns P delivered the judgment of the Court.

42. See [2011] IESC 4.43.44. The constitutional argument was that the sheer breadth of the range of bank assets

performing loans that could be acquired by the Agency. Though interesting, the judgment of the Court rejecting this argument does not form part of this article.


interference with a constitutional right in order to trigger fair procedures under the Constitution. There is confusion in the judgments on that point; Fennelly J seemed to assert that having a constitutional right affected (although not

right had to be at stake. The positions of the other judges were less clear.

While significant for future cases, and for the development of Irish constitutional and administrative law, the case did not ultimately turn on that issue. All members of the Court felt that there was a serious risk of Mr McKillen’s constitutional rights being affected by the acquisition. It was unanimously

affected, because of the potentially serious consequences that could follow under the NAMA Act, and because it stopped him from dealing with his loans and properties freely.of his position in respect of his contracts with his banks, and the reputation of

anyone whose loans were acquired.at risk. Fennelly J described these rights as “aspects of [McKillen’s] property rights or are closely related to them.” While different members of the Court stressed different rights,49 all judges accepted that at least some of these rights would be potentially affected by a NAMA acquisition.

Remoteness

The Court considered that another aspect of the trigger of the right of fair procedures is the likelihood and directness of the effect on the person claiming

consequences” to rights are not enough to invoke fair procedures. The question was how proximate the effect must be to the decision taken, and indeed, how close the person invoking the right to fair procedures must be to the decision.

See, in particular, the judgment of Finnegan J, in which he expressed particular concern about NAMA’s power to make vesting orders, the possible extinguishment of the

made by the mortgagee. Ibid Cf Ibid

one’s company’s reputation.49. For example, Murray CJ did not place great weight on the effect on the relationship

between Mr McKillen and his banks. Macken and Finnegan JJ did not reveal their views on the reputation point.


The Supreme Court disagreed, focusing on the fact that the decision was personal to Mr McKillen, and would have immediate effects on him, and highlighting that more general decisions will usually be too remote to attract fair procedures.claim fair procedures, and stops remote consequences triggering fair procedures.

Exceptions to fair procedures

Even having found that Mr McKillen was entitled to fair procedures, the Court considered whether or not there were circumstances that would justify a denial of fair procedures in this case. The Supreme Court rejected NAMA’s submissions that the Act precluded such procedures being offered. Beyond that, the Agency suggested that circumstances were so exigent and required such urgency that the provision of fair procedures was impracticable. This was not entertained by the Court, as NAMA had not acted with such speed to make urgency a plausible claim.

The Court rejected the idea that there was some general category of emergency that would justify a denial of fair procedures.that any exception to fair procedures based on exigent circumstances must be

Finnegan J illustrated that the impact on Mr McKillen’s property rights was direct and immediate; his relationship with his lenders, and his ability to manage his own property portfolio would be severely restricted. See [2011] IESC 14, Finnegan J, at 14.

Fennelly J distinguished “decisions addressed to or closely connected with named

might be available to those affected by more general decisions. Ibid, Fennelly J, at

see Larry Alexander, “Are Procedural Rights Derivative of Substantive Rights?” Law and Philosophy

For a more detailed examination of this part of the Dellway case, see Ailbhe O’Neill, DULJ

(forthcoming). “NAMA’s long and wholly unexplained delay in acting on their purported decision,

and of the furtivity of their correspondence … is quite inconsistent with any perception of its part on a need for urgency in the acquisition of the loans.” Ibid

The Court recognised a category of cases where the giving of notice would potentially frustrate the purpose of the action being taken, eg O’Callaghan v Commissioners of Public Works DK v Crowley illustrates that, even in such cases, fair procedures should, where possible, only be denied temporarily.


it is the business of the law to identify such circumstances: otherwise the

the Executive… The cry of ‘emergency’ is an intoxicating one, producing an exhilarating freedom from the need to consider the rights of others and productive of a desire to repeat it again and again.

NAMA Act as requiring fair procedures to be offered to those whose loans were to be acquired in certain cases, including Mr McKillen’s.

The case was ultimately a success for Mr McKillen, and NAMA subsequently decided not to reacquire his loans.Court judgments may have on administrative law goes far beyond this particular case.

PART III: THE TRIGGER OF A RIGHT TO FAIR PROCEDURES

Dellway case was that Mr McKillen was entitled to fair procedures before NAMA could acquire his loans. The Dellway the fabric of the Constitution;” all judges agreed that there was a constitutional

The way in which it is woven into that fabric, however, is not clearly agreed,

entitlement to fair procedures.

The Court gave the following statement of principle on what was required to trigger the right to fair procedures:

an indirect consequence for a party’s rights affords the party concerned a right to fair procedures. There must be a real risk that a party’s rights will be interfered with in the event that there is an adverse decision.

The Irish TimesJuly 2011.

Ibid


Ultimately, having analysed the effects of the acquisition of loans by NAMA,

and proximate risk of an interference with a constitutionally protected right, so as to require fair procedures be adhered to prior to the acquisition of the McKillen loans.

procedures. The Court said that only interference with another “constitutionally protected right” could trigger the constitutional right to fair procedures. This statement of principle, if correct, would mean that constitutional justice would no longer overlap completely with natural justice; natural justice, existing before the Constitution, did not depend on constitutional rights being interfered with. The concept of constitutional justice and the constitutional right to fair procedures would be once again severed from natural justice. As discussed

however, reopened this long dormant issue. The Court did not allude to this, nor was there any discussion of whether or not the rules of natural justice might avail Mr McKillen, even without a right at stake.

The Supreme Court

The fair procedures issue was addressed by every member of the Supreme Court save McKechnie J, with many of the judges writing separate opinions while agreeing with portions of the judgments of others. I believe that there are two leading judgments, which pull in different directions on this issue. Both viewpoints merit close scrutiny.

constitutional right to fair procedures to cases where other constitutional rights are potentially affected, although the effect on rights required is not nearly as

constitutional and natural justice, leaving open the question of what procedural protections are available for those who have interests affected which are not

Ibid Ibid

The Court alluded to the distinction between constitutional and natural justice, but noted that it was unclear and possibly illusory: “The distinction between [constitutional and natural justice] is not clear cut and to a large extent the labels have been used


an expansive view of constitutional justice, and rejects any contention that the notion is tied to rights; the constitutional right to fair procedures is a right in itself, and can be triggered whether or not another constitutional right is a

in administrative law.

not clear that the other judges fully agreed with the implications of Fennelly J’s judgment, or that Fennelly J considered these implications. Mr McKillen’s case did not turn on this point, as all judges agreed rights were at play; he would have succeeded regardless of which approach was adopted. In any event, it will fall to future courts to consider precisely what effect the Dellway judgments had on fair procedures in administrative law.

Fennelly J’s view: affect or interfere with constitutional rights

had to be at risk for a constitutional guarantee of fair procedures to be in play. Fennelly J seems

Fennelly J saw the constitutional rights issue as the most critical question of the case:

the right to be afforded fair procedures in accordance with natural and constitutional justice depends on the contemplated decision amounting to an interference with rights, in the sense of legal rights only, guaranteed by the Constitution.

trigger fair procedures, there must be a real risk of interference with constitutional

Fennelly J as a “correct statement of principle.”

If the requirement is that there be direct interference with the legal substance of the rights, the statement is too narrow. It should be capable

[2011] IESC 14, Fennelly J, at [94]. In his view, legal rights seem to be protected as

Ibid, at [99].


of including material practical effects on the exercise and enjoyment of the rights.

interference” with rights. Interference, as he saw it, was an effect on the

effect on a right falling short of interference would not require fair procedures. Therefore, he would not, in the context of triggering a right to fair procedures, “draw a sharp line, what is sometimes called a “bright line,” of distinction

effect on the exercise or enjoyment of rights.”

it still seems to require that constitutional rights be engaged, albeit in a less direct manner. One does not need to show that an adverse decision would actually restrict or interfere with rights in a way that would raise a substantive

that impact falls short of substantive interference with those rights. Decisions that would impact on the enjoyment of property, but that might not in fact be deemed an attack on property rights, might still be said to affect property rights. Similarly,

if there is a threatened effect on a constitutional right, then fair procedures must be afforded to ensure that the right interest is not disregarded, even if the

“fair and reasonable:” just because rights might not be substantively interfered with by the making of that decision does not mean that those with rights affected to a lesser extent cannot suffer unfair and adverse consequences. In such a case, it is essential that such persons be given an opportunity to make representations to establish whether or not such an impact is fair.

Fennelly J noted with surprise that “[t]here do not appear to be any cases where the courts have analysed the type of effect of a decision which an applicant must show to justify the right to be heard.” The language of the previous cases was, at best, confused: there were references to “effects” and “rights” without any real conclusions as to what these actually meant. In MacPharthaláin v Commissioners of Public Works, which was relied on by the applicant, the

decision in question had “affected” the applicant’s rights, but Fennelly J could not determine whether “the rights themselves have to be infringed in their legal

Ibid. Ibid. Ibid. Ibid. Ibid,


quality or does it include cases where the exercise of the rights is rendered

J did not, however, discuss the possibility that constitutional rights might not need to be present in any sense; he seemed to accept, from the arguments of the

Since rights were at play for Mr McKillen, he did not have to address that issue directly to reach a conclusion in this case. It is unfortunate, however, that Fennelly J did not advert to the fact that this means constitutional justice does not avail an individual that is seriously affected by a decision where that effect falls short of putting a constitutional right at risk.

Hardiman J’s view: a stand-alone constitutional right to fair procedures

there is a constitutional right to fair procedures in and of itself, requiring no other constitutional right to ground it. The Constitution requires fairness even outside the context of constitutional rights. The constitutional right to fair procedures is triggered whenever there is a risk that any interest will be seriously affected

before that power is exercised in a manner to which he takes exception.” The applicants did submit that there were constitutional rights affected by the

“they do not need to go that far in order to trigger the basic right to a hearing.” The judge agreed with this proposition.

De Smith’s Judicial Review:

The term ‘natural justice’ has largely been replaced by a general duty to act fairly which is a key element of procedural propriety. On occasion, the term ‘due process’ has been invoked. Whichever term is used, the entitlement to fair procedures no longer depends upon the adjudicative analogy, nor on whether the authority is required or empowered to decide matters

[2011] IESC 14, Fennelly J, at [90]. This interpretation of Fennelly J’s judgment could be contested. Ailbhe O’Neill has

to an “interference or affect” standard means that his judgment is unconcerned with a constitutional right being at play, a position she suggests is similar to, if somewhat

Ibid Ibid


analogous to a legal action between two parties. The law has moved on; not to the state where the entitlement to procedural protection can be extracted with certainty from a computer, but to where the Courts are able to insist

those whom the decisions will affect in widely different situations.

Ireland… The trigger for Fair Procedures is that the person claiming them is a person ‘affected’ by the decision.” De Smith’s authors, speaking of the law of the United Kingdom, were not concerned with constitutional rights being

a person affected by, or with an interest in the outcome of an administrative decision has the right to have adequate notice of this decision and to be given an adequate opportunity to make his case before an administrative body.

require only an effect on interests to trigger fair procedures; constitutional rights need not be affected. The constitutional right to fair procedures stands by itself, requiring no other right to bring it into play.

The passage quoted from De Smith was referring to the duty to act fairly

adopt that position in this jurisdiction, indicating that he believes the proper approach to fair procedures is a general duty to act fairly, unconcerned with cumbersome distinctions. More importantly again, he would constitutionally entrench this position, making constitutional remedies available to all affected

noted that there had been “a constitutionalisation of the right to fair procedures itself.” Constitutional justice was seen to replace and supersede the natural

constitutional right to fair procedures to any other constitutional right at any level, is more elegant, with constitutional justice fully encompassing natural justice. Constitutional justice can be invoked by anyone seriously affected by a decision, as fair procedures in all such cases are protected as a right under Article 40.3.

Ibid, De Smith Ibid. Ibid, JM Kelly: The Irish Constitution

(4th

Ibid,


the one developed in England and Wales, but with constitutional foundations, and additional strength afforded by that constitutional status.

The view of other judges

The views of other judges on this issue were not as clear as those of Fennelly

J did not have the support of the majority of the Court, but they do not indicate that Fennelly J’s position was clearly supported either, despite several judges purporting to agree with his judgment. They might be said to provide evidence that the consequences of Fennelly J’s position were not fully considered.

when the State decides to exercise a power which encroaches on individual rights.”decision did “involve a real risk that their rights would be directly affected.” Murray CJ therefore comes close to Fennelly J’s position.

Denham J seemed to clearly adopt a stance on constitutional justice that required constitutional rights to be at play. Noting the potential impact on property rights, livelihood and reputation, she said:

…there is potential interference with these constitutional rights. Such

constitutional justice, and so the appellants are prima facie entitled to fair procedures.

stance on the trigger for fair procedures was to ask was there a constitutionally protected right at stake. Therefore, it is not clear if she adopted this approach because that was how the case was argued, or if she believed constitutional rights were a prerequisite to constitutional justice being triggered. She is emphatic in her belief that natural justice has been subsumed into constitutional justice. It therefore seems unlikely that she would favour the severance of those concepts.

See below, at note 109. Ibid, Murray CJ, at 11 (unapproved). Ibid, at 14. Ibid, at 10. Ibid, Ibid Ibid


very little can be said about her attitude to future cases.Finnegan J broadly agreed with Fennelly J, but did not elaborate on his view

said he agreed that anyone whose “interests” were affected by a decision was ordinarily entitled to fair procedures, but his analysis proceeds to query whether constitutional property rights were at risk from the acquisition decision.does not explicitly say whether he thinks constitutional rights are required for

J may not have considered the implications of Fennelly J’s position, or formed a view on the constitutional/natural justice distinction.

not entirely consistent with this. Macken J certainly seemed to think that, in administrative law, many effects can justify fair procedures rather than just effects on rights:

It seems to me, however, that the particular value underlying a procedural fairness rule of this nature relates to the principle that the individual affected by a decision should have the opportunity to present his case fully and fairly, and have decision affecting his rights, interests or even privileges made, using a fair and impartial process.90

If this were her position on the constitutional issue, it would clearly be similar

said that “the test appears to be whether or not a person’s rights are affected by the proposed decision.”91

claimed rights of the appellants … is a genuinely serious constitutional right

heard.”92 Therefore it seems that Macken J did suggest that natural and constitutional

justice were separate, with constitutional remedies available to a smaller category of persons that might be entitled to common law natural justice.

“This right arises in the particular circumstances of this case. The decision is fact

and to Mr. McKillen, in the particular circumstances.” Ibid, she felt that decision had to be so severely limited, particularly when she reached her conclusion in the case by constructively interpreting the NAMA Act.

Ibid, Finnegan J, at 2. Ibid, Macken J, at 3.

90. Ibid91. Ibid, at 9.92. Ibid.


based on a constitutional rights trigger, which might explain her choice to focus on constitutional rights.93

approach had she thought that was put forward by the applicants.The other judges on the Supreme Court are not entirely clear on the issue of

whether or not constitutional rights are needed to trigger fair procedures. Denham and Macken JJ’s judgments also raise the possibility that the judges may have simply not considered the issue, because the applicant seemingly conceded that

a broader argument.94 In any event, neither view received clear support from the majority of the Court.

PART IV: FAIR PROCEDURES AT A CROSSROADS

J’s approach, and argue for the law in this area developing along the line of

his focus on constitutional rights were inimical to that end.Three possible explanations of Fennelly J’s approach present themselves:

justice was the correct position, and intended to alter the relationship between

with the broader “effect” standard, rather than the more limited “interference”

for constitutional fair procedures; or third, that Fennelly J did not intend to sever constitutional and natural justice, and any indication to the contrary was inadvertent. These explanations must be examined in turn.

appropriate standard for constitutional justice, while retaining common law natural justice for other interests. The language of “rights affected” is derived from case law on the topic and could be thought to be the correct approach.

Additionally, one could argue that though some interpretative remedy will be

93. “Mr Cush did not invoke a free standing constitutional right to be heard. Rather, he

protected rights are being interfered with…” ibid94.

As noted above, O’Neill’s reading of Fennelly J’s position is different from the one outlined in this article. Consequently, she believes that a majority of the Supreme Court did endorse a trigger for fair procedures that did not rely on the presence of constitutional

See, for example, Garvey v Ireland


available for both constitutional and natural justice, allowing courts to construe a statute as providing fair procedures, constitutional rights (other than the right to fair procedures) should be required for stronger remedies. For example, the application of the perhaps stronger constitutional double construction rule of interpretation, and striking down a statute where no such construction is possible, could be reserved for those cases where other constitutional rights are at risk. When there is no such right in issue, only the common law rules apply, and those rules can be more readily denied by statute. Denial of natural justice cannot invalidate a statute. That is one way that natural and constitutional justice might be sensibly divided.

There are cogent answers to these points. First, the cases that used the language of rights in respect of triggering fair procedures were not fully reasoned

was ever offered. Moreover, to the extent they suggest this position, they are inconsistent with the cases that said that constitutional and natural justice were fully merged. Second, the problem with the above rationale for severance of constitutional and natural justice is that there is only minor evidence to suggest that this was an idea that Fennelly J endorsed.99 Fennelly J never adverted to

justice. If he were deliberately separating constitutional and natural justice, one would expect him to address these questions directly. The fact that he does not do so makes inadvertence a more likely explanation for this element of his decision than a deliberate and conscious reformulation of constitutional and natural justice.

The second possibility is that, given his very broad conception of what puts

would be very few potential decisions where the matter at issue was of “serious

and yet the decision did not affect a right of that person. This view could be supported by the fact that if one looks through the categories of cases listed in

100 they seem

procedures and seemed to use the language of rights when it comes to what effects trigger fair procedures.

See McDonald v Bord na gCon99.

tier standard, as constitutional justice could presumably only be excluded by statute in limited circumstances.

100.private employment; membership of associations and unions; licensing and commercial


capable of being expressed in rights terms, in relation to the right to earn a livelihood, the right to a good name, property rights, association, liberty, etc. Therefore, perhaps Fennelly J brought them into the scope of constitutional

of a right, it merely has to impact upon an interest connected to a right. Moreover, it does not have to be a strictly direct consequence of the decision.101 Fennelly J thought that there was a sliding scale of fair procedures that might be available in cases of different severity. A lesser, more general or more remote effect on rights might be accommodated on the lower end of that scale.

It might be that, in practice, very few decisions with serious consequences

substantially affected but had no right in play,102 then Fennelly J would have severed constitutional and natural justice. The concept of constitutional justice would perhaps be expansive, but it would not encompass natural justice entirely. Moreover, even if this approach did mean that constitutional and natural justice

broader concept in fair procedures than in any other part of constitutional law. It is not clear that it would be worth introducing this strained, broad concept of

fashion. It seems like it would serve only to confuse and mislead.The third possibility is inadvertence; that since the issue was not directly

not occur to Fennelly J. Neither he nor any other judge expressly rejected the

the Constitution; it was rejected by implication when he focused so heavily

respect. This is, I suggest, the most probable explanation. There is evidence in

it was obfuscated, and frustrated, by his approach to the rights question and his

Evidence for this possibility is provided by several statements of Fennelly J,

regulation; disciplinary matters; detention; property and planning; payment of grants,

101.102. Another problem arises where the rights interest is attenuated, but the impact on the

person quite strong. The procedures offered may be less than the effects would seem to merit because of the attenuated connection to rights.


which could be interpreted as leaning toward a broader approach. First, his use of

J’s approach, and could be seen as going beyond rights.103

procedures. One of the references to “interests” noted above seems not to relate to a constitutional right to fair procedures, but rather to a common law entitlement.104

questionable. Moreover, these statements came before his consideration and

or interfering with rights outlined above. These later statements of Fennelly J

why Fennelly J would go to such lengths to distinguish between an effect on rights and interference with rights if rights were not central to the analysis. If

Second, Fennelly J indicated that he thought the watchword of the approach

rejected the approach that would require an interference with a right, he said:

The courts have never laid down rigid rules for determining when the need to observe fair procedures applies. Everything depends on the

principle is fairness. If a decision made concerning me or my property is liable to affect my interests in a material way, it is fair and reasonable that I should be allowed to put forward reasons why it should not be made or that it should take a particular form. It would be unjust to exclude me from being heard. For the purposes of the right to be heard, I would not draw a sharp line, what is sometimes called a ‘bright line,’ of distinction between

on the exercise or enjoyment of rights.

103. “A person whose interests are capable of being affected by a decision of a public body exercising statutory powers, is ordinarily entitled to have notice of the intention to consider the making of the decision and to have his representations heard by the

Cf, at [99] when he refers to something being liable to affect “interests.”

104. Ibid, “ordinarily entitled to” fair procedures. This makes no mention of a constitutional right to fair procedures; it could be suggesting that when, interests, rather than rights, are at stake, one is still entitled to fair procedures at common law.

On several occasions, he refers to “rights and interests” together: ibidoccasion, he uses the term interests by itself, but it appears that interests are synonymous

[2011] IESC 14, Fennelly J, at [99].


of the effect on an individual is the underlying principle; rigid categories are not

he still talks of substantial effect on the “exercise or enjoyment of rights.”

the principle to take account of his interference/effect distinction.The clear anomaly is that if the fundamental principle is fairness, then

there is absolutely no reason why constitutional rights should be required for constitutional fair procedures to be claimed. Unfairness and unreasonableness can arise from a situation where no constitutional right is at issue. Moreover, though he rejected the idea that rigid categories should be set up, he then drew just such a category between cases where a constitutional right is a play and cases where there is no right affected. The principle of fairness does not rely, to any extent, on the presence of a right. Indeed, the principle seems to be opposed to any such categorisation standing in the way of fairness being achieved.

If that is the principle Fennelly J truly endorsed, he should not have

that statement suggesting the need for rights to be at play. Similarly, he should not have drawn the distinction between effect and interference with rights, and

trigger on an adverse effect on any interest. If his intent was to adopt a principle

of that judge as well.Perhaps Fennelly J did not fully appreciate that his endorsement of the

natural and constitutional justice. Perhaps Fennelly J focused on constitutional rights because that was the way in which the case was argued before the Court;

Perhaps he felt that the decision on that issue should wait for a case where more full argument could be advanced. Since there were rights at play in the Dellway case, one cannot be sure that were the judges presented with this point they would choose to formally separate natural and constitutional justice, or opt for a broader approach to what constitutional justice encompasses.

Ibid.


The case for constitutional justice as a constitutional duty to act fairly

I believe that, whatever explanation or intent may lie behind it, Fennelly J’s

Dellway judgments, and the problems and confusions therein, are a perhaps inevitable consequence of failures in Irish constitutional and administrative law: failure to fully develop the meaning of constitutional justice, and have a clear jurisprudence on when it is triggered and the related failure to develop a more coherent doctrine for when fair procedures are owed in administrative law. Instead of clearly breaking with the old, stilted categories, the Irish courts maintained and expanded them without any clear framework or guidance

be preferred by future courts addressing the issue.Dellway expands the scope of constitutional justice

into a constitutionally protected right to procedural fairness broadly in line with the expanded duty to act fairly in administrative law in England and Wales. The entitlement is based on the effect of a decision on the interests of various persons and does not rely on constitutional rights. It thus encompasses all fair procedures, and does not require any separate concept of natural justice. The constitutional nature of this duty, however, gives it added force. The Constitution provides stronger remedial action in the event of the procedural fairness being precluded by statute. In the United Kingdom, the duty to act fairly can be withdrawn by statute.109 In Ireland, as well as deploying interpretative remedies as was done in Dellway (and would be available in a similar, though perhaps less robust, form in the United Kingdom), the Irish courts also have the option to strike a law down as unconstitutional for denying this constitutional rights to fair procedures. Given

could legitimately be denied were limited, this is not at all fanciful.110 The State

need for expediency, where the provision of fair procedures would in essence frustrate the purpose behind the decision or action; even then, fair procedures should be provided at the earliest available opportunity.111

The nature of constitutional justice is clear with this approach, and no concern need be paid to whether some constitutional right is affected in some

is instantiated in a right to fair procedures for those parties not unduly remote from the effects of a decision. This duty is patently easier to apply than any

109.

110.111. O’Callaghan v Minister for Public

Works DK v Crowley


conception of fair procedures adopted in Ireland to date, binding all those making decisions regardless of category. The effects on individuals will judge whether or not that duty was breached in respect of a particular person not being offered particular procedures, but it sends a clear message that it is incumbent upon all decision makers to act in a fair manner. If they fail to perform that duty, the courts can declare their decisions invalid and require them to be made using proper procedure. If a statute excludes those procedures, it may be declared unconstitutional to that extent. At a stroke, this approach remedies the arrested development of fair procedures jurisprudence, and gives it a clear and potent place in the constitutional order.

Fennelly J may have wished to similarly modernise Irish administrative law, with fair procedures being demanded in the interests of fairness rather than by

requirement that rights be at play means that he did not succeed, instead opening up a confusing distinction between cases where constitutional rights are at stake and cases where they are not. As discussed above, at best, this is a circuitous and torturous route to the same goal; at worst, it reopens the problematic and pointless distinction between natural and constitutional justice.

After Dellway, constitutional justice stands at a crossroads. It can develop using the confusing and problematic reliance on constitutional rights, however

route overcomes the arrested development of the duty to act fairly in Irish administrative law, giving strength to it through its constitutional footing, and

think it is more than clear which road should be taken.

Fair Procedures in Irish Administrative Law: Towards a Constitutional Duty to Act Fairly in Dellway...

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