The Administration of Justice in Administrative Tribunals: Zalewski v. Adjudication Office  IESC 24 (Practical Consequences)
See my introductory note here and previous posts here (on Article 34.1) and here (on Article 37.1). See also Tom Hickey’s note on Zalewski, available open-access from the Modern Law Review,
Now, the reader may be wondering what, if any, practical consequences this decision carries. The interpretive discussion of Articles 34.1 and 37.1 is all very interesting as a matter of theory, but as a practical matter, it is not clear that anything much would change. If Article 37.1 is read broadly, after all, as O’Donnell J tells us it should be, few if any functions are likely to be invalidated.
The practical significance of the judgment is to be found in the characterization of the Commission as engaged in the administration of justice. The upshot is that any body held to be administering justice within the meaning of Article 34.1 “must comply with the requirements of the administration of justice by an independent tribunal according to law” (at para. 132). Even when falling within the ‘saver’ clause, a body administering justice must meet judicial standards in some respects:
The exercise of jurisdiction captured by Article 37 is the administration of justice. The Article merely permits it to be carried out by a body other than a court and by a person other than a judge in a context that is non-criminal and limited. This has the consequence that, for example, a decision-maker is not required to make a declaration required by Article 34.6 to be appointed by the President, and is not prohibited from holding any other position of emolument. However, the function being performed and the power being exercised must comply with the fundamental components of independence, impartiality, dispassionate application of the law, openness, and, above all, fairness, which are understood to be the essence of the administration of justice … The standard of justice administered under Article 37 cannot be lower or less demanding than the justice administered in courts under Article 34 (at para. 138).
A body administering justice must provide “those features of procedure necessary for a fair determination” (at para. 139). Three consequences followed for the Commission, and follow generally for similarly situated bodies.
First, justice must presumptively be administered in public: at the very least, the blanket statutory ban on hearings being held in public must be unconstitutional (at paras. 141-142). Article 34.1 does envisage limited circumstances, prescribed by law, where closed hearings are appropriate but, plainly, express provision would have to be made in legislation. I would also observe that the administration of justice in public should also carry with it a requirement that decisions be published and made available to members of the public. This is an important aspect of procedural fairness and égalité des armes in any event but now would seem to have constitutional force.
Second, the Commission had to have the powers necessary to hold hearings of a court-like standard. For one thing, it had to be able to require evidence to be given on oath, which is backed up by the possibility of prosecution for the giving of false evidence: “the structure created by the requirement to give evidence on oath, and the possibility of prosecution for false evidence, is an important part of ensuring that justice is done in cases where there is serious and direct conflict of evidence” (at para. 144). For another, the Commission had to be able to require the cross-examination of witnesses (at para. 146).
More still may be required, for in the venerable case of Lynham v. Butler (No. 2), Chief Justice Kennedy remarked that an exercise of judicial power “requires of necessity that the judicial department of government have compulsive authority over persons as, for instance, it must have authority to compel appearance of the party before it, to compel the attendance of witnesses, to order the execution of its judgments against persons and property” ( 67 I.L.T.R 75, at p. 84). MacMenamin J also suggested in dissent that adopting binding procedural rules would be appropriate:
Earlier this judgment noted that the WRC has not adopted any rules of procedure by statutory instrument. This, too, creates undesirable uncertainty, which arose in this case. Where significant issues are at stake, such as employment, parties are entitled to know, in advance, the rules of procedure to be applied prior to embarking on a hearing. This did not occur. This is not to say that the full range of fair procedures would be necessary in every case, but, in this one, they were necessary. In a case where there is a conflict of evidence, a person entrusted with making decisions or determinations which may affect someone’s life, must make clear to the parties, from the outset, the scope of procedures which will apply in that given case. Such procedures are necessary for the administration of justice (at para. 139).
There is, here, evident potential for increased procedural formalism in administrative tribunals. But the Supreme Court was conscious of the risk of promoting formalism over flexibility. O’Donnell J was careful to recognize the importance of flexibility in administrative tribunals: “The concept of speedy dispute resolution close to the workplace and in a manner not hidebound by either formality or procedure has much to recommend it, and I would reject unhesitatingly the contention that such a body must be staffed by people with formal legal training and sufficient legal experience to be appointed judges” (at para. 137). In principle, therefore, administrative tribunals retain the scope to perform their functions in a flexible way, as long as, one, their hearings are structured in a court-like fashion (with parties being represented, evidence being tendered, witnesses being cross-examined and so on) and, two, they have court-like powers to ensure rigorous, accurate fact-finding.
Third, the Commission had to be independent: “Independence and impartiality are fundamental components of the capacity to administer justice” (at para. 147). Any statutory provisions permitting revocation of appointments would have to be carefully scrutinized. Now, the 2015 Act states that members of the Commission are to be independent in their functions (a standard provision of Irish legislation) but once independence has been placed on a constitutional footing, more than statutory lip service is required. At the pressure points of independence — appointment and reappointment, removal from office, control of resources — administrative tribunals and their members must have enforceable guarantees to protect them from external forces.
The remarkable conclusion, then, is that decision-makers who are administering justice must, whilst retaining flexibility, approximate to judicial standards of justice. At a structural level, they must have guarantees of independence and the procedural powers necessary to structure their hearings in judicial fashion (having due regard, nonetheless, for their particular institutional setting). The Irish Constitution therefore guarantees independence for administrative tribunals that are administering justice (in the “limited” way contemplated by Article 37.1) and requires them to have powers and procedures roughly equivalent to those of the courts. Even if I am not entirely convinced by the Supreme Court’s reading of Articles 34.1 and 37.1, and even if I have some apprehension about the potential for increased procedural formalism in administrative tribunals, the insistence on putting administrative independence on a constitutional footing brings me significant cheer.
This content has been updated on October 20, 2023 at 11:23.