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“... is concerned not with the decision but the decision-making process ... judicial Review as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made.”5

And Lord Diplock in Council of Civil Service Unions6 in 1984 set out the three accepted grounds for granting Judicial Review, namely “illegality”, “irrationality” and “procedural impropriety”.  This left a narrow opening for review on grounds other than “illegality, or ultra vires, or improper procedure.  A decision could be overturned for “irrationality” or unreasonableness but the opening was very narrow indeed. Lord Diplock defined it as “a decision which is so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.”7

The Irish courts followed the English jurisprudence in this area pretty closely, but if anything they set the bar even higher where it might be sought to overturn a decision on the grounds of unreasonableness.  In Keegan v Stardust in 1986, Henchy J held that it was not for the courts to substitute their decision for that of the tribunal being reviewed.  If the tribunal had not erred in its procedure or on the law, the courts could only intervene if “the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense.”8

In O’Keeffe v. An Bord Pleanala9 in 1992, Finlay CJ said: “[T]he circumstances under which the courts can intervene on the basis of irrationality with the decision-maker involved in an administrative function are limited and rare.”  A court could not interfere just because it would have come to different conclusions or because “the case against the decision made by the authority was much stronger than the case for it.”  For the court to intervene, “it is necessary [to establish] ... that the decision-making authority had before it no relevant material which would support its decision.”

And in what was probably the high, or perhaps more correctly the low, point of the Wednesbury tradition, O’Sullivan J. said in Aer Rianta cpt v. The Commissioner of Aviation Regulation in the High Court in 2003:

To be reviewably irrational it is not sufficient that a decision-maker goes wrong or even hopelessly and fundamentally wrong; he must have gone completely and inexplicably mad; taken leave of his senses and come to an absurd conclusion.”10

This attitude was somewhat softened by the fact that the Irish courts did have power to quash decisions for unconstitutionality in a way the UK courts did not.

5 [1982] 1WCR 1155

6 Council of Civil Service Unions v. Minister for the Civil Service [1985]  AC 375

7 Ibid

8 State (Keegan) v. Stardust Victims Compensation Tribunal [1986] I. R. 642

9 O’Keeffe v. An Bord Pleanala & Others [1993] 1 I. R. 39

10 Aer Rianta cpt v. Commissioner for Aviation Regulation [2003] IEHC 12

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