Good Decision-Making For Public Bodies, Guide 1: The Basics

Author:Ms Joanelle O'Cleirigh, Sara Carpendale and Roberta Guiry
Profession:Arthur Cox
 
FREE EXCERPT

Every year the High Court deals with hundreds of applications seeking to challenge the decisions of public bodies. A total of 835 applications were made in 2014; 973 in 2013; and 998 in 2012. If you do not follow best practice when making a decision that affects the legal rights of others, you risk a legal challenge to your decision and becoming one of these statistics.

Our new series of Good Decision- Making Guides highlight what is best practice in decision-making and offer simple and practical tips to reduce the risk of challenge to your decisions.

In this first Guide, we consider why it is important for decision-makers in public bodies to exercise care when making decisions; the common pitfalls in decision-making; and how a decision of a public body might be challenged.

WHY IS IT IMPORTANT FOR PUBLIC BODIES TO EXERCISE CARE WHEN MAKING DECISIONS?

Good decision-making is an essential principle of good administration. If public bodies do not follow best practice when making decisions, this can:

result in the decision being challenged, which is costly and time-consuming for the decision-making body; be distressing for the person affected by the decision, particularly if he or she is put to the trouble and expense of challenging the decision; cause reputational damage to the decision-making body and undermine public confidence in government as a whole; and affect the decision-making body's ability to implement policy. WHAT ARE THE COMMON PITFALLS IN DECISION-MAKING?

Common pitfalls in decision-making include:

failing to follow legislative requirements or relevant policies and procedures; failing to properly assess relevant information; making factual errors; failing to apply fair procedures; and failing to give reasons. WHAT IS ADMINISTRATIVE LAW?

In order to best understand the ways in which decisions can be challenged, we need to examine the differences between administrative (public) and private law.

Administrative or public law is the body of law that governs public bodies in the exercise of their public functions.

However, public bodies are not governed exclusively by public law; private law applies to public bodies in certain situations.

EXAMPLE

If a Government department enters into a contract with a stationery supplier, the private law of contract governs the relationship between the parties.

If the department puts the contract for the supply of stationery out to tender, any decision on the award of the contract must...

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