The Irish Courts and the Administrative State

Abstract

Everyone in Ireland is affected by the administrative state, in doing ordinary activities as varied as returning from abroad, applying for a driver’s licence, paying taxes, choosing a broadband internet package, or turning on the kettle. Hundreds of administrative agencies across the country churn out thousands upon thousands of decisions every day, about everything from social welfare claims to the quantity of turf that can be removed from rural bogs.

For the most part, these bodies are creatures of statute. As such, they may exercise only those powers granted to them by the Oireachtas. In their activities, Irish public bodies are subject to the law, as set down by the country’s superior courts (the High Court, Court of Appeal, Court of Criminal Appeal and Supreme Court).

My focus in this chapter will be on the constraints of public law. I will observe that Irish public law is highly centralised, with control of legal interpretation firmly vested in the judicial branch and, more particularly, in the High Court (with, of course, onward appeals to the Court of Appeal, the Court of Criminal Appeal and the Supreme Court). There is relatively little legal pluralism. This observation will be confirmed by contrasting the approach the Irish courts have taken to the decision of public law issues with the approaches taken in other jurisdictions, such as England and Wales, Canada, Australia and the United States.

In addition, Irish judges have adopted a traditionalist approach to the relationship between the judiciary and the administrative state. In Ireland, the courts control the articulation of legal norms, giving little or no weight to the views of non-lawyers about the meaning of law. They rely in addition on a formalistic distinction between questions of law, which are reserved to the courts, and questions of fact, discretion or policy, which are for non-lawyers. Again, bringing comparative perspectives to bear – particularly from Canada and to a lesser extent from England – will allow us to see more clearly how traditionalist Irish judges have been in this area, because in other jurisdictions non-lawyers have significant influence on the content of legal norms.

I consider these issues under the broad headings of: the supervisory jurisdiction of the superior courts; limited legal pluralism (both on matters of interpretation and institutional structure); and alternative dispute resolution.