The Scope of Judicial Review in Ireland: O’Connell v The Turf Club  IESC 57;  2 I.R. 43
Following up on last week’s post on the public/private divide in Irish law and, indeed, last month’s post on the scope of judicial review in Canada, readers may be interested in the most recent treatment by the Irish Supreme Court of the scope of judicial review, to be found in the fascinating case of O’Connell v The Turf Club. The applicants here had been punished by the Turf Club for various breaches of the Rules of Racing arising from a race – allegedly fixed – in Northern Ireland. No complaint of procedural unfairness, or indeed of misapplication of the Rules, was alleged. Rather, the applicants attacked the very basis of the Rules, alleging that the governing statute, the Irish Horseracing Industry Act 1994, did not set out ‘principles and policies’ to cabin the powers of the Club as required by the jurisprudence on Article 15.2.1 of the Constitution. In addition, the applicants alleged that adjudications under the Rules represented an administration of justice, in contravention of the jurisprudence on Articles 34 and 37 of the Constitution.
Of particular interest here is the preliminary issue: whether the Club was amenable to the supervisory jurisdiction of the High Court at all. Writing for a majority of the Supreme Court, O’Donnell J. held that it was amenable to judicial review. His reason for so finding was expressed in narrow terms. He disavowed any desire to detail “the precise nature of the test” for amenability, content to reason by analogy with a previously decided case:
“[I]t is clear that in the aftermath of the 1994 Act, the respondent as the Racing Regulatory Body is more clearly in the domain of public law than the Institute of Chartered Accountants in Ireland was in Geoghegan v Institute of Chartered Accountants in Ireland  3 IR 86, and sufficiently within the field of public law and within the public domain, as to have the consequence that judicial review lies.”
Writing only for himself, Hardiman J. was more forthright: “the respondent has been constituted by statute as the “Racing Regulatory Body … in relation to flat racing” and has accepted this status in its dealings with the public, and specifically including the applicants”. It seems to us that this would have been an uncontroversial basis on which to hold the Club amenable to judicial review. One would have thought that, at the very least, the addition by statute of the coercive power of exclusion would have been enough to make the Club amenable to judicial review.
The reason for O’Donnell J.’s reticence was the “distinctive and sometimes complex features” of the 1994 Act, which in essence sought to recognise the existing functions of the non-statutory Club (and its equally non-statutory sister, the Irish National Hunt Steeplechase Committee) rather than to create a statutory body:
“[T]he 1994 Act undoubtedly seeks to cover the existing bodies with a statutory veneer and to give certain identified statutory powers (of exclusion) and impose certain statutory obligations (of appeal) but the overall effect is not to remove the existing underlying structure, or its legal nature, but rather to add to it. I would accordingly conclude that the formulation contained in the 1994 Act was not intended, and more importantly is not to be understood as, constituting the respondent as henceforth a statutory body exercising solely statutory powers…[T]he unusual terms and structure of the 1994 Act can be more readily understood once they are approached on the basis that an object of the Act was to leave intact the respondent’s traditional role in the running and supervision of races.”
However, the jurisprudential significance of the unusual nature of the 1994 related less to the preliminary issue of the amenability of the Club to judicial review than to the substantive issue. Building on his analysis of the statutory scheme, O’Donnell J. rejected the claim that the Rules of Racing and the legislation which recognised them were invalid as a violation of Article 15.2.1:
[I]n this case, given the relationship between the parties, the Rules of Racing which are here alleged to have been breached, and which provided for the hearing and determination of complaints, were not dependent upon the 1994 Act for legal force or validity. Thus, even if the Rules of Racing were held to be invalidated on the grounds that they exceeded the permissible scope of subordinate legislation, or even more dramatically if the 1994 Act was itself unconstitutional, the respondent would still have legal existence, and legal power to enforce the Rules of Racing against the applicants, who had agreed to be bound by them. The fundamental premise upon which the applicants’ argument is founded, therefore, is, in my judgement, false.
It followed that “even if the applicants were to persuade the court that the Act lacked sufficient principles and policies to permit subordinate legislation to be made, the respondent would still have legal power to make and enforce the Rules of Racing in respect of the applicants”.
If nothing else, O’Donnell J.’s resolution of the case serves to emphasise the point that the scope of judicial review and the scope of the substantive principles of public law are not co-extensive.
  IESC 57;  2 I.R. 43.
  IESC 57;  2 I.R. 43, at para. 80. The Supreme Court thus held that Murphy v The Turf Club  IR 171 was no longer good law, having regard to the provisions of the 1994 Act. O’Donnell J. also noted (ibid.) that the decision on amenability “may have little practical consequence for the respondent since it is already obliged to operate fair procedures, and does so as a matter of private law, and to give reasons for its decisions”.
  IESC 57;  2 I.R. 43, at para. 27. See also the list of factors Hardiman J. identified at para. 16.
  IESC 57;  2 I.R. 43, at para. 71, emphasis added. See similarly Bloxham (In Liquidation) v Irish Stock Exchange  IEHC 301;  4 I.R. 91, at para. 58, per Cooke J.: “The applicant was already a member of the company long before the ISE became a “regulated market”. A stock broking firm does not require to become a guarantor member of the Irish Stock Exchange Limited in order to exercise the commercial activity of a stock broker providing investment services in a regulated market. In 1995, there were ten such guarantor members. There are now apparently just seven. But a membership of the exchange and access to participation in the market operations is available in the various forms of membership identified in Rule 2.1. There are now many participating members in the different membership categories apart from the remaining guarantors. None of those memberships is dependent upon or connected to the status of subscribing guarantor of the limited company.” See also Greenband Investments v Bruton  IEHC 67, at para. 6.3, in respect of the Irish Coursing Club, per Clarke J.: “it does not seem to me to be appropriate to characterise the ICC as a ‘creature of statute’. It is not set up by the 1958 Act. It is not continued in existence by that Act. Rather the 1958 Act confers powers on the ICC and regulates the terms of its constitution and amendments of that constitution. The 1958 Act does not, in my view, alter the fundamental fact that the ICC has no corporate existence conferred on it, and thus can only exist as a members club albeit an unusual one whose constitution is determined and regulated by statute.” But in Matthews v Irish Coursing Club Ltd  1 I.R. 346, not mentioned in Bruton, O’Hanlon J. granted an order of certiorari quashing a decision of the respondent company. The company had been given certain statutory responsibilities under the Greyhound Industry Act 1958 and O’Hanlon J. observed (at 354) that it had been accepted that, “the decision made by the respondent was an exercise of its discretionary powers as a body established by statute and having important public duties to perform”.
  IESC 57;  2 I.R. 43, at para. 90, emphasis added.
  IESC 57;  2 I.R. 43, at para. 91.
This content has been updated on July 13, 2018 at 10:41.