By Cara O’Donnell.
Cara O’Donnell is an LL.B. (Political Science) Senior Sophister student at Trinity College Dublin. In this article, she critically examines the approach that Irish courts have taken when reviewing administrative decisions that engage rights through the lens of the 2022 Supreme Court decision of Burke v Minister for Education and Skills.
When reviewing the exercise of administrative discretion that impacts rights, Irish courts have often failed to strike an appropriate balance between what Knight describes as ‘vigilance’ and ‘restraint.’[1] In this jurisdiction, judicial “vigilance” is driven by the constitutional duty of the judiciary to protect and vindicate rights[2] while “restraint” is motivated by an awareness that administrators may possess superior expertise, institutional competence, or democratic legitimacy.
Faced with these two concerns, Irish courts have tended to prioritise “restraint” at the expense of “vigilance” [1] . While Meadows-v-Minister for Justice, Equality and Law Reform[3]1 suggested potential progress in the vindication of rights, discrepancies in the majority’s judgments and their application in subsequent cases frustrated this potential. The level of scrutiny applied in rights-based cases was substantially improved in the focus of the present discussion, Burke-v-Minister for Education and Skills,[4] whereby O’Donnell CJ endorsed proportionality as a distinct standard of review. However, this judgment exhibits shortcomings in failing to clarify the test for proportionality and means by which deference operates. The explicit application of a structured proportionality test complemented by a contextual approach when reviewing administrative discretion that breaches rights would achieve a degree of scrutiny that sufficiently protects rights.
Meadows
The majority of the Supreme Court in Meadows held that any judicial determination of unreasonableness[5] in the exercise of administrative discretion engaging rights must have regard to the principle of proportionality. There was, however, disagreement on the bench as to how proportionality should be assessed.[6] Whilst Denham J proposed adopting the structured proportionality test established in Heaney-v-Ireland,[7] Fennelly J and Murray CJ simply maintained that where a right has been infringed, any ‘countervailing considerations’ or ‘justification’ must be commensurate with the degree of infringement.[8] Furthermore, there was contention as to whether deference should operate contextually by incorporating this principle within the proportionality test, or spatially by establishing the level of deference by reference to the subject matter of the decision.[9] Denham J alone favoured excluding proportionality analysis from decisions that entail expertise.[10] As will be discussed, the deficiencies that afflict these judgments generated issues in their subsequent interpretation and highlighted the need for a different approach.
Burke: Proportionality Tout Court
The judgment of O’Donnell CJ in Burke marked a meaningful departure from Meadows and development in the protection of rights against administrative exercise of discretion. O’Donnell CJ asserted that although ‘a decision that is found to breach rights can often, indeed almost always, be described as unreasonable […] it is not apparent that this is the optimal way of approaching and analysing the claim.’[11] In detaching proportionality from ‘unreasonableness’, O’Donnell CJ established proportionality as a separate standard of review where rights have been breached. This progression heightens the degree of scrutiny that courts must now apply to administrative decisions by eliminating many of the defects inherent to Meadows.
The Keegan standard of unreasonableness requires applicants to establish that an administrative decision ‘plainly and unambiguously flies in the face of fundamental reason and common sense.’[12] By incorporating proportionality into this standard, Meadows retained this exceptionally high threshold, which is evidently at variance with the constitutional value assigned to rights in this jurisdiction. The subsequent interpretation of Meadows heightened this threshold further as many courts required decisions to exhibit ‘manifest disproportionality’ before being deemed unreasonable in the Keegan sense.[13] Proportionality as a standalone standard of review alleviates the burden of proof on applicants as they need only show the decision to be disproportionate, as opposed to further proving that this disproportionality ‘plainly and unambiguously flies in the face of fundamental reason and common sense.’ This allows courts to engage in closer scrutiny of decisions where rights have been breached.
The endorsement of a free-standing proportionality inquiry also eliminates a previous ‘anomalous distinction’ between the protection of rights from legislative interference as against administrative interference.[14] Irish courts have long reviewed legislation using a proportionality framework; imposing less rigorous scrutiny for administrative discretion would thus lead to the ‘perverse conclusion that what could not be accomplished by the democratically elected Oireachtas could nevertheless be done by an unelected administrative official’.[15] Both the legislature and administrators have ample potential to breach individuals’ rights and the judicial duty to vindicate rights is fixed in both contexts. This development thus obliges courts to scrutinise measures that breach rights to the same degree irrespective of their source, a valid approach given that this source is immaterial to the affected applicant.
Burke: Application of Proportionality
Though O’Donnell CJ made it clear that the proportionality principle which applies to legislation should also apply to administrative discretion that breaches rights, it is not evident whether he envisaged the same structured test that applies to legislation, as established in Heaney, to operate in the administrative context. In one respect, O’Donnell CJ contended that there was ‘no reason why a different test’ than that applied to legislation should apply to administrative decisions.[16] In applying proportionality to the given facts, a few of O’Donnell CJ’s conclusions aligned with the elements of a structured Heaney test: he noted that the measure pursued a legitimate aim, and contemplated hypothetical alternatives that would have infringed the right to a lesser degree. However, the judgment omitted to refer to Heaney and failed to engage in other aspects of the test such as whether the measure was rationally connected to the objective and whether the infringement of the right was ultimately proportionate to such objective. O’Donnell CJ’s conclusion rested on an analysis of the defendant’s justification for the infringement and emphasised that ‘the question is whether the degree of interference with or burden upon the exercise of the right is justified.’[17] This absence of structure was evident in the subsequent application of O’Donnell CJ’s judgment in Kennedy-v-the Minister of Agriculture, Food, and the Marine as the Court of Appeal similarly engaged in some elements of the test while omitting others. [18]
The failure of O’Donnell CJ to explicitly endorse and apply each component of a structured Heaney proportionality test substantially weakens the improvements that should flow from establishing a distinct proportionality standard of review. As fundamental rights are highly abstract concepts, evaluating them by using an equally abstract or vague formulation ‘runs a serious risk of obfuscating the reasoning process.’[19] Obliging courts to scrutinise each element of the four-part structured test assists them in relating such abstract notions to the concrete facts of a case.[20] This obligation also minimises the potential for unfettered judicial discretion by ensuring that the rationale of courts is transparent.[21] Not only does this better vindicate the rights of individuals in a given case by guaranteeing sufficient scrutiny of the relevant facts, but it may also prevent future rights-infringement if administrators understand why and at which stage of the test previous decisions failed.[22] Crucially, merely clarifying that the structured four-part test should apply is insufficient to generate these benefits if, like in Burke and Kennedy, courts fail to properly examine each individual component.
A further issue apparent in O’Donnell CJ’s application of proportionality is its likeness to Murray CJ and Fennelly J’s approach in Meadows, as the three judges balanced the degree of infringement against its alleged justification. Academics have noted the similarity between this formulation in Meadows and the ‘anxious scrutiny’ test previously adopted in the UK which held that ‘the more substantial the interference with human rights, the more the court will require by way of justification.’[23] Notably, the European Court of Human Rights has held this ‘anxious scrutiny’ approach to be in breach of article 13 of the Convention,[24] observing that it does not require administrative decisions ‘to respond to a pressing social need or to be proportionate to any legitimate aim’ and thus inadequately protects rights.[25] A purposive move away from balancing the right infringement against countervailing justifications and imposition of a structured proportionality test is thus necessary to ensure that Irish law is compatible with the Convention.
Burke: Operation of Deference
McMahon has argued that a structured proportionality test does not in and of itself ‘necessitate very strict review of administrative decisions.’[26] Though a structured test requires courts to scrutinise specific aspects of each case, variation remains in the degree to which courts are interventionist or deferential in respect of each aspect. In Burke, O’Donnell CJ asserted that the level of deference in every case is determined by the Constitution. As it is the constitutional duty of the judiciary to vindicate rights, O’Donnell CJ submitted that ‘there is no reason…to extend deference to the executive’s decision’ where it has breached constitutional rights.[27] O’Donnell CJ made this statement to refute the contention that, where executive action has engaged rights, the more deferential standard of establishing a ‘clear disregard’ of the Constitution by the executive is required for judicial intervention. As has been outlined, he favoured a less deferential proportionality analysis instead. However, O’Donnell CJ did not clarify whether or how deference should operate in applying this proportionality test.
The unqualified emphasis O’Donnell CJ placed on the judiciary’s duty to intervene and defend constitutional rights when they have been breached suggests an implicit rejection of Denham J’s spatial approach to deference in Meadows, whereby proportionality would not be expected of decisions that engage expertise. This development is commendable as it eliminates the risk of some decisions ‘escaping rigorous scrutiny’ by defining them as pertaining to expertise at the outset.[28] Varying the degree of scrutiny based on exogenous factors like expertise contravenes the judiciary’s duty to protect rights irrespective of context and risks the Irish courts abdicating their constitutional responsibilities.[29]
Though O’Donnell CJ’s approach certainly appeases any concerns of the judiciary abdicating their powers, there is a danger that future courts will interpret his judgment as endorsing a complete omission of deference where rights are engaged. The oft-cited justifications for deference[30] should not be easily dismissed and can be assessed within a proportionality analysis vis-à-vis the facts of the case. This contextual approach has been favoured by the House of Lords in Huang-v-Secretary of State for the Home Department where Lord Bingham posited that the consideration of factors like democratic legitimacy, institutional competence, and expertise is ‘performance of the ordinary judicial task of weighing up the competing considerations on each side.’[31] The structured Heaney proportionality test allows for such an approach, particularly through classifying its components as either empirical or normative. As advanced by Brady, aspects of the test such as whether the public objective is legitimate are normative questions while aspects such as whether the measure is rationally connected to the objective are empirical.[32] Administrators who yield democratic legitimacy may be deferred to in respect of normative questions whereas administrators with particular expertise may be deferred to in respect of empirical questions. This approach is suitable for all administrators as it can account for their relative competence and apply normative and empirical deference accordingly.[33] Though the level of scrutiny entailed in analysing proportionality in this way is undoubtedly high, the protection of rights warrants this approach.
Conclusion
The endorsement of proportionality as a distinct standard of review in Burke marks a shift towards the judicial scrutiny that is deserved when reviewing the infringement of rights by the administrative exercise of discretion. It is hoped that future courts interpret Burke as endorsing a structured Heaney-like proportionality test, as until the judiciary meaningfully scrutinises each component of this test, many of the substantive benefits of proportionality will not materialise. Furthermore, the vindication of all rights in this context cannot be assured until courts adopt a contextual approach to deference. The various stages of a structured proportionality test should guide courts in this respect by determining at each stage whether the features of the relevant administrator justify a degree of deference. Though Burke sets a foundation for a level of scrutiny that adequately protects rights, the realisation of such is contingent upon future judicial interpretation and clarification of the judgment.
[1] Dean R. Knight, ‘Mapping the Rainbow of Review: Recognising Variable Intensity,’ (2010) 2010 N.Z.L.REV. 393.
[2] Ross Malervy, ‘Towards a Constitutional Understanding of Administrative Judicial Review in Ireland’ (2022) 40 I.L.T. 153.
[3] [2010] IESC 3.
[4] [2022] IESC 1.
[5] Standard for unreasonableness set out in State (Keegan)-v-Stardust Victims’ Compensation Tribunal [1986] I.R. 642.
[6] Hilary Delany and Catherine Donnelly, ‘The Irish Supreme Court inches towards proportionality review’ (2011) P.L. 9.
[7] [1994] 3 I.R. 593.
[8] Meadows (n 3) [71].
[9] Hilary Biehler, ‘Curial Deference in the Context of Judicial Review of Administrative Action Post-Meadows’ (2013) 49 I.J. 29.
[10] Meadows (n 3) [7].
[11] Burke (n 4) [93].
[12] State (Keegan)-v-Stardust Victims’ Compensation Tribunal [1986] I.R. 642 [658].
[13] McSorley-v-Minister for Education and Skills [2012] IEHC 201 [7.7].
[14] Biehler (n 9) 43.
[15] Paul Daly, ‘Standards of review in Irish administrative law after Meadows-v-Minister for Justice, Equality and Law Reform’ (2010) 32 D.U.L.J. 379, 6.
[16] Burke (n 4) [94].
[17] Burke (n 4) [100].
[18] [2022] EICA 165.
[19] Alan Brady, ‘Proportionality, deference and fundamental rights in Irish administrative law: the aftermath of Meadows’ (2010) 32 D.U.L.J. 136, 142.
[20] ibid.
[21] Malervy (n 2).
[22] Brady (n 19).
[23] R-v-Ministry of Defence, ex parte Smith [1996] QB 517 [554].
[24] Smith-v-United Kingdom (2000) 29 E.H.R.R. 493.
[25] Hilary Biehler and Catherine Donnelly, ‘Proportionality in the Irish courts: the need for guidance’ (2014) 3 E.H.R.L.R 272, 275.
[26] Christopher McMahon, ‘Judicial Deference – Reassessing Political Accountability’s Pedestal in Irish Administrative Law’ (2018) 36 I.L.T. 68, 70.
[27] Burke (n 4) [61].
[28] Biehler (n 9) 44.
[29] Lord Steyn, ‘Deference: A Tangled Story’ (2005) P.L. 346.
[30] Biehler (n 9) 31-39.
[31] [2007] 2 A.C. 167 [16].
[32] Brady (n 19).
[33] Brady (n 19).
UCD Law Review 