Distinguishing Mandatory and Directory Provisions
Another excerpt from my work on Hogan and Morgan’s Administrative Law in Ireland follows, this time attempting to distinguish between mandatory and directory statutory provisions. Warning: this analysis may not survive its imminent encounter with my co-authors! Thoughts welcome, especially from those who have to walk the mandatory/directory line in other jurisdictions.
When the Oireachtas stipulates that certain formal and procedural requirements must be observed before an administrative decision is arrived at, it rarely states what consequences follow non-compliance with these statutory requirements. Of course, to this general observation there are exceptions: s.8(6)(b) of the Garda Síochána Act 2005 provides that a failure by a prosecuting Garda to comply with certain statutory provisions or a direction of the Director of Public Prosecutions does not invalidate anything done by the member in instituting or conducting the prosecution; s.37(3) of the Planning and Development Act 2000 provides that an appeal received by the Board after the expiration of the appropriate period shall be invalid as not having been made in time; and s.5(1A) of the Local Elections (Petitions and Disqualifications) Act 1974, as amended by the Local Elections (Disclosure of Donations and Expenditure) Act 1999, s. 23, provides, quite expansively, that a local election shall not be declared invalid on the ground of non-compliance with named statutory provisions, “where it appears to the court that a candidate or party, as the case may be, complied with the principles laid down in such regulations taken as a whole and that such non-compliance or mistake did not materially affect the result of the election”. Finally, it may sometimes be clear from the terms of the statute that no adverse consequences are to follow from non-compliance. For instance, s.966 of the Taxes Consolidation Act 1997 authorises officials to initiate proceedings against taxpayers, but this authorisation is expressed to be “without prejudice to any other means by which payment of the sums due” can be enforced. Accordingly, failure to comply with s.966 is not necessarily a fatal defect.
Nevertheless, it is true to say that the courts are, for the most part, left to their own devices as far as the consequences of non-compliance with procedural requirements are concerned: “The question for the court is to interpret [the legislature’s] silence on the topic”. Whether a statutory provision which, on the face, appears to be obligatory is to be regarded as truly mandatory or is merely to be regarded as directory in nature, depends on the statutory intent and whether compliance with the provision can fairly be said to be essential to the general object intended to be secured by the Act; in addition, the extent to which harm has been suffered as a result of non-compliance has often influenced judges charged with determining whether a provision is mandatory or directory. The purpose of the conventional mandatory/directory distinction was to ensure that one party could not rely on a minor or technical breach of prescribed statutory requirements in order to invalidate an administrative decision. In practice, this conventional distinction has proved difficult to draw and, increasingly, the courts seek to examine all the circumstances of the case.
The relevant test has been stated in the following terms:
“If the requirement which has not been observed may fairly be said to be an integral and indispensable part of the statutory intendment, the courts will hold it to be truly mandatory, and will not excuse a departure from it. But if, on the other hand, what is apparently a requirement is in essence merely a direction which is not of the substance of the aim and scheme of the statute, non-compliance may be excused.”
We suggest that the following analytical framework may be helpful in determining whether a failure to comply with a statutory or regulatory provision will invalidate a decision. A court addressing this issue will have to ask two questions. First, was the provision mandatory or directory? Second, should the violation of the provision be tolerated or not? The first question is essentially an exercise in discerning legislative intent; the second more a matter of judicial policy as applied to the facts of particular cases. In general, the stronger the legislative intent – as determined by reference to the indications discussed below – and the more serious the consequences of the violation, the more compelling the argument will be to invalidate the impugned decision. Conversely, where legislative intent is weaker and the consequences of non-compliance are relatively harmless, the party arguing that non-compliance should be excused will ordinarily win the day. Of course, most cases are likely to fall somewhere in between these two extremes. Nonetheless, thinking about this area of the law in terms of legislative intent and consequences of non-compliance provides a useful analytical framework with which practitioners can advise clients and argue cases, and judges can undertake the difficult task of adjudicating upon breaches of formal and procedural requirements.
In answering the first question, the court must determine whether the Oireachtas intended the provision to be treated as mandatory or directory. Several interlinked considerations have to be taken into account: statutory language; fair procedures and the protection of personal interests; constitutional rights; the centrality of the provision to the statutory scheme; and statutory purpose. In brief, the stronger (as opposed to merely exhortatory) the statutory language, the more central the provision to the proper functioning of the statutory scheme and the greater the effect on rights and interests, the more likely it is that the Oireachtas intended the provision to be treated as mandatory. Conversely, where statutory language is looser, where a provision is not essential to the achievement of the objectives of the statutory scheme and where the impact of non-compliance on rights and interests is relatively harmless, the legislature’s likely intention is that the provision be treated as directory.
In answering the second question, the court will have regard to the consequences of the failure to comply with the provision. This will turn on the extent to which there has been compliance (notwithstanding that the compliance has not been perfect) and prejudice to third parties. Where there has been substantial compliance (satisfying the objectives of the statutory scheme) which results in no third party suffering prejudice, the courts have tended to tolerate the conduct at issue. But where there has been no compliance at all, or an attempt at compliance that does not advance the objectives of the statutory scheme, and prejudice to third parties has resulted, judicial tolerance of the conduct is not to be expected.
 See also Gillen, where Finnegan J., took the view, having reviewed the authorities on mandatory and directory provisions, that a two-step analysis was required:
- Did the legislature intend total invalidity to result from failure to comply with the statutory time limit?
- If the answer to that question is yes no further question arises. If the answer is no then the court must consider whether there has been substantial compliance which would depend upon the facts of each individual case and will involve consideration of whether any prejudice has been caused or injustice done by regarding an act done out of time as valid.
 1 I.R. 574 at 591. To these we would add a third stage. Judicial review remedies are discretionary. In some circumstances, a remedy might be withheld even though there has been a failure to comply with a mandatory requirement: see e.g. J & E Davy v Financial Services Ombudsman  IESC 30;  3 I.R. 324 at 351 (inappropriate to order mediation at a late stage given the importance of expedition to the functioning of the statutory scheme) and 370 (requirement to give reasons in a particular form had to be considered with due regard to the “requirement for informality).
 See similarly; Building Societies Act 1989 s.51(2); Credit Union Act 1997 s.70(3); Irish Takeover Panel Act 1997 s.15; Adoption Act 2010, ss. 50-51.
 For applications of this provision, even to minor violations, seeMcCann v An Bord Pleanála  1 I.L.R.M. 314; Graves v An Bord Pleanála  2 I.R. 205; and Murphy v Cobh Town Council  IEHC 324.
 Criminal Assets Bureau v J McN  IESC 30; Unreported, Supreme Court, 25 May, 2017.
 Gillen v Commissioner of An Garda Siochána  IESC 3;  1 I.R. 574 at 602, per O’Donnell J.
 Monaghan U.D.C. v Alf-a-Bet Promotions Ltd  I.L.R.M. 64; State (Elm Developments Ltd) v An Bord Pleanála  I.L.R.M. 108; Brown v Board of Management of Rathfarnham Parish National School  IEHC 178;  1 I.R. 70; J & E Davy v Financial Services Ombudsman  IESC 30;  3 I.R. 324; Gillen v Commissioner of An Garda Siochána  IESC 3;  1 I.R. 574.
 Compare Gillen v Commissioner of An Garda Siochána  IESC 3;  1 I.R. 574 at 634, per McKechnie J., dissenting: “I use [the distinction] as traditionally understood, namely, that if a requirement is mandatory (sometimes otherwise described as ‘strict’ or ‘imperative’), the court will not excuse its non-performance, whereas if directory (something otherwise described as ‘permissive’), the court will”.
 State (Elm Developments Ltd) v An Bord Pleanála  I.L.R.M. 108 at 110 per Henchy J. For a dubious application of similar principles, see Re Philip Clarke  I.R. 235. In Connolly v Sweeney  I.L.R.M. 483, McCarthy J. said (at 488) that he “would be slow to accept the underlying principle [in Elm Developments] in criminal matters”.
This content has been updated on August 4, 2017 at 13:59.