Remoulding Administrative Law: An Essay for Gerard Hogan (Part III)

This is the third of three parts of an essay for an edited collection celebrating the career of Gerard Hogan, currently a judge on the Irish Supreme Court

Back to the Future: the Rise of Responsiveness

In the previous sections I outlined the state of administrative law at the outset of Gerard Hogan’s career before describing the paradigm shift that judicial review underwent between the 1980s and 2010s. In this section, I will continue the review of developments into the 2020s, looking also forward to what might be in store for administrative law in the decades to come.

Reasonableness review has begun to incorporate a notion of responsiveness. In Irish law, the rise of responsiveness is marked by Justice Hogan’s decisions at Supreme Court level in Killegland Estates Ltd v. Meath County Council[1] and Middlekamp v. Minister of Justice & Equality,[2] which encapsulate the current state of the law and prompt questions about its future evolution.

The rise of responsiveness began in Balz and Heubach v. An Bord Pleanála.[3] Here, the Board had rejected a submission in relation to a planning application on the basis that it was irrelevant. The Supreme Court held that this response was insufficient in the circumstances, as it “is a basic element of any decision-making affecting the public that relevant submissions should be addressed and an explanation given why they are not accepted, if indeed that is the case”. [4] In the subsequent case of Naisiunta Leictreacht (NECI) v. Labour Court,[5] the Supreme Court reiterated the requirement of responsiveness, here in the context of the making of an order setting terms and conditions of employment in a sector of the economy. Putting the point pithily, McKechnie J held that “a decision-maker must engage with significant submissions”.[6]

Justice Hogan delivered the Supreme Court’s reasons in Killegland. Here, a company owned lands that had been zoned for residential development. But when the Council adopted a new development plan, the lands were de-zoned to community infrastructure, even though the Chief Executive had consistently taken the view that no alterations should be made.  The question on judicial review was, as one would surmise given the turn to responsiveness in Balz and NECI, whether the reasons were adequate in the circumstances.

Indeed, it is worth remarking upon how Justice Hogan began his consideration of the adequacy of the reasons:

In assessing this claim, it bears remarking that it is clear from the express language of [the statute] that there can be no expectation as such that a particular zoning of land in a given development plan will remain inviolate. Accordingly, any such zoning is liable potentially to be changed via this democratic process at some future stage when the next development plan is adopted.[7]

In earlier eras of administrative law, this would almost certainly have sufficed to dismiss a claim for judicial review. As the Council was acting within the four corners of its statutory authority to zone, de-zone and adopt a development plan as it sees fit, there would have been no room for judicial intervention (save, perhaps, in respect of a decision that flew in the face of reason).

Today, however, being within the four corners of the statute – intra vires, as administrative lawyers once would have said – is no longer enough. And so Justice Hogan, whilst acknowledging the significant deference due to councillors as representatives of the public,[8] went on to consider the adequacy of the reasons given:

in making a change of this kind to the development plan the councilors are going against the advice of the Chief Executive and the planning officials, the reasons for such a decision should be properly evidenced and justified. Accordingly, the reasons for such a decision should either be clear from the resolution itself or from the documentation before the councilors when the making of the resolution was discussed. In exceptional cases it may be sufficient to show that the reasons for the decision were well understood.[9]

Reasons were, in particular, required because of the impact of de-zoning on the interests of the landowner.

Here, ultimately, the reasons were adequate, as “no one could really have been in any doubt as to the reasons given for the de-zoning”,[10] as they appeared “in the minutes of the meeting and the motion papers filed in support of the resolution”.[11] My point, however, is that engaging in this sort of analysis would have been unthinkable in the 1980s. Judicial review has come a long way. An intrepid litigant will no longer seek to demonstrate that a decision-maker acted outside its jurisdiction, trespassing beyond the four corners to which it ought to remain confined, but rather that a decision was tainted by unreasonableness, given its consequences and failure to properly engage with arguments.

Note, here, the concern of responsiveness with the individual – it is to the submissions and arguments of the individual that the decision-maker must respond. And the role of the court on judicial review is to vindicate the interests of the individual by ensuring that they were not only heard but listened to. Again, where once the ultra vires doctrine was seen to perform this function, today that is the role of reasonableness review. Moreover, the analysis here is entirely substantive: it is not enough for the Council to say that it had the formal authority to make a decision, but it must provide responsive reasons to justify that decision.

Now let us look ahead, using another of Justice Hogan’s decisions as a lens to gaze towards the future. In determining adequacy, one issue that arises with some frequency is the use of boilerplate language, especially in settings where the decision-maker is faced with a high volume of matters to address. In both Balz and NECI, the use of boilerplate was deprecated. The use of boilerplate language was expressly criticized in Balz as raising “unsettling” questions: “If language is adopted to provide a carapace for the decision which makes it resistant to legal challenge, it may have the less desirable consequence of also repelling the understanding and comprehension which should be the object of any decision”.[12] Similarly, in NECI, there were a “series of significant questions raised” about the applicable criteria and, “[h]aving been legitimately raised, these points required to be dealt with by a response, in substance, giving reasons”.[13] Failure to do so would mean that the decision was unlawful.

Justice Hogan took a different tack in Middlekamp. M had been granted a two-year visa under a scheme offered to youthful nationals of various countries, such as Canada, to spend a limited period of their formative years in Ireland. One of the conditions of the visa was that it could not be renewed or extended. M nonetheless made an application for extension to the Minister, only to be met with refusal on the following basis: “the interest of public policy and the common good in maintaining the integrity of the immigration system outweigh such features of your [case] as might tend to support a decision to vary [your] permission”. The question, then, was whether this administrative boilerplate was sufficiently responsive to the detailed application M had put together, which emphasised in particular her ties to her spouse, who was completing dental studies in Ireland (under a separate visa running for a total of four years).

Justice Hogan held that the Minister’s reasons were adequate:

The phrase “the interests of public policy and the common good in maintaining the integrity of the immigration system” – the key phrase contained in the Minister’s refusal letter of 2 January 2020 – may be a pithy one, but in its context it conveys with sufficient clarity the concerns of the Minister. The whole point of the Working Holiday Scheme was that its operation was finite and time-limited. Absent exceptional circumstances the Minister did not feel that she could make exceptions for individual cases, as to do otherwise would compromise the integrity of the scheme. This was a perfectly reasonable point of view which reflects the clear public policy which I have already described.[14]

But does responsive reasonableness review means very much if the response can be mere boilerplate? Where, as here, the individual has prepared a detailed application explaining why her circumstances merit special treatment, if responsiveness is to mean anything it must mean providing reasons that meaningfully engage with those circumstances. This is not an obligation of prolixity, but of responsiveness, to give the individual and the public confidence that relevant submissions and arguments were properly considered by a state actor in exercising public power. Indeed, the Minister’s laconic letter would, on the approach in Middlekamp, justify a refusal in any case, which rather proves the point that the reasons were not responsive to the facts of the case. Another way to put the point is that the reasons here were merely formal, as they did not demonstrate substantive engagement with M’s circumstances, a curious reversion to administrative law, 1980s-style.

If I may be so bold as to make a prediction, I suspect that Middlekamp will ultimately be regarded as a case best fitting in a long line of jurisprudence deferential to the executive in matters relating to immigration policy. Justice Hogan’s fervent belief in the ability of administrative law to assist the individual in ensuring accountability for exercises of public power, evident in his early scholarship and his jurisprudence on reasonableness and responsiveness will shine through over time. At least, with Holmes whispering in my ear about the arc of the common law of judicial review, I think the trajectory is towards closer scrutiny by courts of the reasons given by creatures of statute to justify their use of authority.

Conclusion

Comparing the early writings of Gerard Hogan in 1980s on administrative law topics with his judicial contributions later in his career is instructive. Throughout, there is a commitment to protecting the individual against abuses of public power. Yet the means of achieving that goal are quite different: the formality of the ultra vires doctrine and jurisdictional error in the 1980s; but the flexibility of reasonableness review in the 2010s and, then, the dynamism of responsiveness in the 2020s. Wherever we go from here, Gerard Hogan’s contributions illuminate contemporary debates and the evolution of administrative law over his professional lifetime.

[1] [2023] IESC 39.

[2] [2023] IESC 2.

[3] [2019] IESC 90.

[4] [2019] IESC 90, para 57.

[5] [2021] IESC 36.

[6] [2021] IESC 36, para 155.

[7] Killegland, para 56.

[8] Killegland, paras 57-58, citing Malahide Community Council Ltd. v. Fingal County Council [1997] 3 IR 383, 397, per Lynch J and Article 28A.1 of the Constitution.

[9] Killegland, para 67, approving Christian v. Dublin City Council [2012] IEHC 163, [2012] 2 IR 506.

[10] Killegland, para 69.

[11] Killegland, para 72.

[12] [2019] IESC 90, para 46.

[13] [2021] IESC 36, para 169.

[14] Middlekamp, para 47.

This content has been updated on February 5, 2026 at 16:01.