WATCH: Fair Procedures in the Administration of Justice Bill 2024


Deputy Patrick Costello

I move:

That leave be granted to introduce a Bill entitled an Act to provide and guarantee that administrative decision makers operating under Article 37 of Bunreacht na h√Čireann are obligated to dispense of their quasi-judicial functions in accordance with due process and fair procedures, to give the Minister power to designate such bodies and to give the Minister power to issue regulations in relation to procedures to ensure that quasi-judicial determinations are subject to the guarantee of certain adequate fair procedures being in place.

The genesis of the Bill is the decision of the Supreme Court in the Zalewski case in recent years. Before I start into it, I must thank a young barrister by the name of Kevin Kelly who assisted me quite ably in the drafting of this legislation. In the case, Mr. Zalewski went to seek redress from the Workplace Relations Commission, WRC, where, quite simply, he did not receive any reasonable fair treatment or clear, fair, transparent procedures.

This was appealed through the courts up to the Supreme Court, which agreed quite clearly that he did not get these fair procedures. In his decision, the Chief Justice said that the standard of justice administered in quasi-judicial bodies under Article 37 of the Constitution cannot fall below the standard of justice administered in the courts under Article 34. This is a hugely consequential judgment because, essentially, there is a huge problem with the role of quasi-judicial bodies. I could spend a long time talking about that.

Essentially, however, we are pushing more of our justice administration on to these quasi-judicial bodies where the same level of fair procedures and balance, fairness and justice is not administered. The Chief Justice said quite clearly that this is wrong and that justice administered under Article 37 cannot fall below the standard of justice administered under Article 34. As I said, however, the reality is that it does, and does so regularly.

Interestingly, we passed some legislation in the wake of the Zalewski case to ensure fair procedures. We have only done it for the WRC and Financial Services and Pensions Ombudsman. However, there are a huge variety of quasi-judicial bodies that it would seem are simply built on sand and at risk of collapsing and being thrown out by the courts for a failure to provide any meaningful fair procedures to those who come seeking justice and redress.

The aim of this Bill is to address that in a broad way instead of in piecemeal fashion. The Bill starts by defining quasi-judicial bodies and what the relevant bodies are. Supplementary to that, it provides power to the Minister to delegate a relevant body as a quasi-judicial body under Article 37. Then, it states clearly that the standard of justice for administrative decision-makers cannot fall below that which is available in a court. This includes a person knowing the full case against him or her and the ability to cross-examine, ability to appeal and ability to compel witnesses. These are the sorts of things that quite often do not feature in quasi-judicial bodies and are an essential part of the administration of justice. Therefore, it creates a standard that must be adhered to. Again, any quasi-judicial body that exists at the minute that does not provide for fair procedures is at risk of being struck out by the courts as unconstitutional. The aim of this Bill is to fix that.

The Government or draftspeople in some Departments have not grasped how consequential and serious this is because they keep creating new quasi-judicial bodies, which are effectively undermining the administration of justice in this country. Quite often, when they do, they do not actually provide for these fair procedures. Again, as I said, they are simply houses built on sand that are liable to collapse.

Finally, the Bill provides power for the Minister to make regulations. These will be similar to orders, of course, that we see in the superior courts and District Court and Circuit Court. Fundamentally, this Bill is about saying that quasi-judicial bodies need to work to a higher standard. This is not about the people in there, the administrative decision-makers, but the structures and rules under which they are operating. They need to be stronger and better or we are not providing justice for our citizens, and we are not in line with what the Supreme Court said whereby justice administered under Article 37 cannot fall below the standard of Article 34. Quite frankly, we frequently fall below that standard. That needs to be fixed and this Bill will do that.

An Leas-Cheann Comhairle

Is the Bill opposed?

Minister of State at the Department of the Taoiseach (Deputy Hildegarde Naughton)

No. Question put and agreed to.

An Leas-Cheann Comhairle

Since this is a Private Members’ Bill, Second Stage must, under Standing Orders, be taken in Private Members’ time.

Deputy Patrick Costello

I move: “That the Bill be taken in Private Members’ time.”