Good Decision-Making For Public Bodies, Guide 4: Fair Procedures – Beware Of The Pitfalls

Author:Ms Joanelle O'Cleirigh and Roberta Guiry
Profession:Arthur Cox
 
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This is the fourth in our series of Good Decision-Making Guides for Public Bodies. These Guides highlight what is best practice in decision-making and offer simple and practical tips to reduce the risk of challenge to your decisions.

Decision-makers have certain powers and privileges, which must be exercised fairly and responsibly. In Guide 3, we looked at fair procedures generally and the requirement that decision-makers be impartial and free from bias.

In this Guide, we consider the duty of decision-makers to:

notify the person affected by the decision of any allegations against him/her; give him/her the opportunity to be heard; allow him/her to call witnesses, make representations and cross-examine the other side (where appropriate); allow him/her to have legal representation; and give reasons for the decision and keep a written record of these reasons. GIVE THE PERSON NOTICE

A decision-maker must allow the person who is the subject of the decision to know the case against him/her.

This involves:

notifying the person that a decision adverse to him/her may be made; notifying him/her of the possible consequences of the decision; providing the person with all relevant material or, if publicly available, directing him/her to where it may be found (e.g. a website); and giving him/her a reasonable time in which to consider the material and an opportunity to respond. EXAMPLE

The applicant challenged a decision of the Garda Commissioner removing him from his services as a probationer garda. The Commissioner did not tell the applicant that he had received adverse reports about him from senior officers and nor did he give the applicant an opportunity to respond to the reports.

High Court: The Garda Commissioner should have given the applicant copies of the adverse reports and an opportunity to respond to them. (O'Brien v Garda Commissioner)

HEAR THE PERSON

The decision-maker must hear both sides of the story. This does not mean that he/ she must hold an oral hearing in every case. In some cases, it may be sufficient to ask for written submissions.

However, an oral hearing may be appropriate in cases where, for example, the decision will affect the person's liberty, reputation or livelihood, or where there are conflicting facts that cannot be resolved without oral evidence.

In deciding whether an oral hearing is necessary, consider:

the nature of the inquiry; the rules of the inquiry; the consequences of the decision for the person who...

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