Judicial review in Ireland: ensuring accountability of regulatory decisions

Judicial review is rightly seen as a fundamental feature of the Irish legal system, providing a mechanism for the courts to oversee the decisions made by public bodies, including that of our regulators. This process ensures that these bodies act within their legal boundaries, adhere to fair procedures, and make decisions that are reasonable and proportionate. Its goal is to look behind any Chinese walls that a public body may attempt to erect around its processes, so that public decisions are transparent and seen by all.

Regulatory decisions and judicial review

Regulatory decisions can significantly impact individuals and businesses, making it crucial that these decisions are subject to judicial review. Judicial review allows the courts to examine the legality of the decision-making process rather than the merits of the decision itself. Grounds for seeking judicial review include illegality, procedural impropriety, irrationality, and proportionality.

The legislature is increasingly conscious of the use of the judicial review mechanism of a de facto form of appeal and has tried to legislate around this in recent legislation. For example, the Maritime Area Planning Act 2021 introduced a comprehensive framework for the sustainable development of Ireland’s maritime area. It established the Maritime Area Regulatory Authority (MARA), based in Wexford, which has the power to enforce compliance with planning conditions and certain environmental regulations within Ireland’s extensive maritime area. MARA polices developments in the maritime area by assessing and granting permissions in the form of Maritime Area Consents (MACs) and Maritime Usage Licences (MULs). MACs are required for large-scale developments and activities, such as offshore wind farms. MULs, on the other hand, are necessary for smaller-scale activities and uses, such as aquaculture or marine tourism.

Section 58 of the Maritime Area Planning Act 2021 (“MAP Act”) provides that decisions made by MARA in respect of MACs and MULs can be subject to judicial review. Section 58 allows stakeholders such as individuals, businesses, and environmental organizations, to challenge MARA’s decisions in court if they believe that the decisions were made unlawfully, unfairly, or outside of MARA’s legal authority. The goal of judicial review under the MAP Act is to provide a mechanism for ensuring that MARA’s decision-making process is transparent, fair, and accountable, and that it adheres to the principles of legality, procedural propriety, and rationality.

Similarly, the Planning and Development Act 2024, once fully enacted, proposes to bring significant changes to the planning system in Ireland, and the role of judicial review in the planning process. Critics of the Irish planning system have long pointed to the “abuse” of the judicial review mechanism to delay or scupper development. Section 32 attempts to forestall this by mandating that applicants must exhaust all administrative appeal procedures, such as appealing decisions to An Bord Pleanála (soon to be reimagined as An Coimisiún Pleanála) before seeking judicial review. The goal is to promote resolution within the administrative framework of An Coimisiún Pleanála, relegating judicial review as a last resort. Additionally, Section 35 of the Act clarifies standing requirements, specifying that applicants must demonstrate a “sufficient interest” in the matter to proceed with a judicial review application, in the hope of setting a higher bar to dissuade those who might be construed to be abusing the process to frustrate development.

Case law

Several recent cases illustrate the application of judicial review in the Irish regulatory space. For instance, in Casey and Bioatlantis Aquamarine Ltd v. Minister for Housing, Planning and Local Government (2022), the Court of Appeal reviewed the decision-making process of the Minister under the Maritime Area Planning Act 2021 (MAP Act). The facts revolved around the granting of a Maritime Area Consent (MAC) for a large-scale aquaculture project proposed by Bioatlantis Aquamarine Ltd. The appellants, including environmental activists and local residents, challenged the decision on the grounds that the Minister had failed to adequately consider the potential environmental impact and had not followed the required procedural steps.

The court examined whether the decision was made within the legal authority and followed fair procedures. The appellants argued that there was a lack of proper environmental assessments and public consultations as mandated by the MAP Act. They also contended that the decision was irrational, given the significant risks posed to the local marine ecosystem.

The Court of Appeal found that on the facts the Minister had complied with the statutory requirements for environmental assessments and public consultations. The court emphasized the importance of adhering to fair procedures and ensuring that all relevant factors were considered in the decision-making process. It also underscored the necessity of transparency and thorough documentation to avoid any perceptions of procedural impropriety, a point which should not be lost on public servants.

Bioatlantis serves as a significant precedent in reinforcing the standards for regulatory decision-making and the role of judicial review in upholding accountability and legality in administrative actions.

Conclusion

Judicial review plays a vital role in maintaining the rule of law and protecting individual rights in Ireland. It rightly keeps public servants on their toes, knowing that decisions made must be fair and lawful, and encourages transparency and confidence in the regulatory process. Nevertheless, in keeping public servants on their toes it may have the undesired effect of adding stress and anxiety to the shoulders of the public servant, who may feel that every decision they make will be second guessed. As the Court of Appeal in Bioatlantis averred, transparency through thorough documentation can ensure transparency and protect the public servant from allegations of unfairness or impropriety.

La Touche Training can assist the public servant and regulator in gaining the skills necessary to forestall any reasonable suggestion of impropriety through its note taking, recording and report writing courses. Our writing courses help the public servant achieve excellence in their documenting and reporting. Our bias and decision-making courses can aid in understanding one’s unconscious bias and how that can impact on decision making. And in the unfortunate yet inevitable situation where a public servant is taken to task and called to the High Court to give evidence in a judicial review hearing, our expert witness and courtroom skills courses can empower the public servant to give a good account of themselves in the witness box, deliver their evidence persuasively and stand up to cross examination.

Furthermore, the impact of judicial review on the regulator will be discussed by accomplished lawyer Lorna Lynch SC on the 26th of March 2025 our Regulatory Investigations Conference 2025 at the Radisson Blu Royal Hotel, Golden Lane, Dublin 8.

Author: Alex Nichol, Solicitor, BCL, LLM, Dip Corp. and La Touche Training Program Developer and Trainer