The doctrine of curial deference in Ireland

• Author: Patrick O'Reilly
• Position: Barrister-at-Law
• Pages: 197-210

2007] Curial Deference in Ireland 197

THE DOCTRINE OF CURIAL DEFERENCE

IN IRELAND

PATRICK O’REILLY∗

“[T]he Irish Courts have no appetite to review decisions

of regulatory bodies. The remarks of the Superior Courts

understate in many ways how unsuited the Irish judiciary

believe themselves to be in resolving such [regulatory]

matters…”1

INTRODUCTION

The above quotation accurately describes the general

attitude of the Superior Courts when asked to interfere, by way of

Judicial Review, with the decisions of regulatory or statutorily

“independent”2 expert bodies. The term adopted to describe this

doctrine is known as “curial deference”, being the courts’

deference or the judicial attitude of restraint shown as regards the

decisions of such bodies. The term carries with it a sense of old-

fashioned and dignified humility and forms part of a wider

doctrine of judicial restraint shown by the courts in the context of

Judicial Review; in the judicial review of decisions of statutory

expert bodies, the Superior Courts will accord to such bodies a

certain latitude or margin of appreciation evidencing the Court’s

respect for the role and expertise of such bodies.

_____________________________________________________

∗ Barrister -at-Law.

1 Excerpt from Bar Council of Ireland Submission on Regulatory Appeals, 31

October 2006, prepared for the purposes of the Consultation Paper on

Regulatory Appeals focusing on appeals relating to major economic and

sectoral regulatory Authorities. Further information on both the consultation

paper and the submissions made for the purpose of the Consultation Paper c.f.

www.betterregulation.ie, a website managed by the Department of An

Taoiseach.

2 It is not at all suggested that such bodies are systemically biased but neither

are they truly independent; their appointments are often political ones, their

budgets are often determined by the relevant Government department, sectoral

policy may statutorily be subject to the direction of the relevant Government

and the political appointees may be removed by the relevant Minister.