Strengths and Weaknesses of the Judicial Review Process

‘With reference to examples from Northern Ireland and the Republic of Ireland, academic commentary, and applicable case law, discuss the strengths and weaknesses of Inquiries and the Judicial Review process as mechanisms used to challenge administrative action.’

Administrative law[1] is regarded as the area of law concerned with the control of governmental powers. These refer to powers derived from, or duties imposed by, statue law (primary and subordinate); the Royal prerogative, and legislation of various forms emanating from the European Union. The key function of administrative law is to control decision-making on the basis of these powers, whether at the level of central government, or at the level of devolved government, or at the level of local government. Judicial review process and Inquiries are two important areas of administrative law used by citizens in Republic of Ireland and Northern Ireland to secure accountability of public bodies. The voluntary agreement among individuals or group and the government or community as a whole called the social contract, insist that citizens must follow the rules and in return the state must discharge its obligations and duties. Although there is imbalance in this relationship, because the government has the most of the power and resources, which is making citizen weaker. That does not mean that the citizen cannot directly challenge and pressure test administrate action. The existing mechanisms impute to public confidence in government by cutting out maladministration, which is resulting in stable society. One of those mechanisms is judicial review.

Judicial review[2] is the name of a particular type of court action where an individual challenges the decisions or actions of a body performing a public function. In a judicial review, the High Court both in Northern Ireland and Republic of Ireland, examines whether the body acted lawfully in arriving at its decision. Usually, the Court[3] examines whether the body: a) observed all relevant legal rules, standards and requirements; and b) acted within the limits of its powers.

Judicial review is not an appeal. The Court generally checks how the body get at its decision rather than the merits of the actual decision itself. Judicial review is a remedy of last resort. This means that it is usually only appropriate to take a judicial review action when there is no adequate alternative way to resolve the issue, such as an appeal[4].

An example of judicial review in Northern Ireland could be Re Duffy case[5].

Mr Duffy applied for judicial review to challenge the appointment by the Secretary of State for Northern Ireland of two new members of the Parades Commission for Northern Ireland. Mr Duffy’s challenge was based on a number of grounds directed to the suitability of Mr Burrows and Mr Mackay to be members of the commission and to the process leading to their appointment. His challenge was upheld, on a limited ground, by Morgan J but was rejected by a majority of the Court of Appeal in Northern Ireland[6]. It is worth to remember that judicial review is not concerned with the decision, but with the decision making process. Its role is more supervisory rather than appellate. The procedure is set out in Order 53 of rules of the court. This includes pre-action protocols, which are a series of steps to be taken by a person who wishes to bring a claim to court.  The applicant must also lodge an application in a limit of three months. Must have ‘locus standi’[7] or standing. Judicial review is not available as a right and the applicant need to ask the court for permission to avail of this mechanism. There are three grounds for judicial review in Northern Ireland drafted by Lord Diplock, Roskill and Scarman in GCHQ case[8].

A decision may be challenged if, in arriving at the decision, the body: acted illegally (case study: Colaiste Feirste v Department of Education[9]); acted in a procedurally unfair manner (case study: Royal Brompton & Harefield NHS Foundation Trust[10]); acted irrationally (case study: Re JR1’s Application[11]) or acted contrary to an individual’s legitimate expectation as protected by law (case study: Loreto Grammar School[12]). The fourth one has to be along with the human right law.

It is important to remember that judicial review have their strengths and weaknesses that must be taken under consideration before starting the process.

Judicial review is a key component of the UK constitution and linked to the three constitutional theories. Parliamentary design is a key feature of judicial review. Ensuring government organisations act in accordance with statutory powers admit is one of the main grounds. In this sense judicial review underpins parliamentary sovereignty by application of the ‘ultra vires’, which is constitutional justification for judicial review arises from the need to ensure that decision-makers act within the powers conferred by Parliament. The modified theory[13] holds that Parliament has a general intent in granting discretionary power and this should be exercised in accordance with the rule of law. This theory holds Parliament sovereign with the judiciary subordinate to its will.

Extension of some grounds of review raises question about the proper role of the courts. It is whether the judiciary limits the power of the legislature, or the judiciary is limited by the legislature.

‘The principles of administrative justice are rooted in the constitutional bedrock of the rule of law’[14]. The rule of law seeks to control and impose limits on government by insisting that government acts in accord with law and operates within the law. Judicial review could also be seen as a manifestation of the separation of powers, ensures that no body has too much power and supposes a system of checks and balances to guard against abuse of power. The doctrine is justifying court intervention and is limiting the role of the courts. The courts are limited to reviewing the decision, then leaving the body charged with making the decision to make the decision against correctly. The courts then avoid impinging on the constitutional role of the Executive to administer the law. 

Judicial review is available because the “source of power” test is complied. This test clarify that judicial review is only available where the decision or possibly non-decision of the public body relates to that citizen’s statutory powers or powers under the prerogative or common law must relate to the exercise or non-exercise of those powers further to the body’s public law duties to the claimant. Public services are now contracted out by government to private sector. They have assumed responsibilities for the provision of goods and services to the general public. Those bodies would potentially be beyond the scope of judicial review if we applied the source of power test. In last few decades, the courts have reacted to the changes in the structure of the government to bring these bodies within the circuit of the supervisory jurisdiction. Judicial review also has the extension to hear cases relating to some prerogative powers expanding their scale.

One of the weaknesses of the judicial review process which is important for a person who is applying for, is the cost and the limited circumstances, specially when legal aid need to be granted. These limits the justice for citizens, who fall outside the narrow legal aid ground. Another weakness is the limited scope of remedies available to the applicant. Judges very often do not grant remedy by way of quashing the decision of the public body. In most cases the decision is back to the public body to reconsider in light of the court remarks. Also it needs to be taken under consideration the fact that too much power is in the hands of unelected officials, judges are not always objective. They might have personal and ideological stakes in juridical decisions.

Different function within the administrative process belongs to inquiries. They are often part of the original decision-making process, they are frequently activated only after an appeal has been lodged against the initial government decision. Inquiries are designed to establish facts by way of an inquisitorial process. They are not made to seek out criminal or civil liability. Apart from being part of the decision-making process, inquiries assume many forms and have very disparate functions and aims. Final outcome will have a profound impact on individuals and sometimes on whole communities.

The government may establish inquiries to investigate an issue considered to be of public importance. Such inquiries may be a device to deflect criticism and thereby defuse a potential crisis by conveying the impression that the issue is under impartial investigation. More formal version of inquiries may be set up under the Inquiries Act 2005, which repealed the Tribunals of Inquiry (Evidence) Act 1921. These are used only very rarely, where an event has caused particular political controversy or where disaster has caused such public concern that it is felt appropriate to hold searching investigation into the facts.

Constitutional function is to investigate issues of national concern, consider the evidence and set recommendations in a form of a report. Inquiries are not adversarial as in normal court as they function in an inquisitive manner. They are more concerned with the care process of handling witnesses, which is called Salomon principles[15]. They are designed to protect fully the interest of any witness, they also introduce a substantial ‘adversarial’ element into proceedings, with, for example, the right to call and cross-examine witness. This process is to bring public confidence in the state. The Franks Report 1957[16] said that inquiries should be fair, open and impartial. This was the case in the ‘Bloody Sunday’ inquiry also called Saville report [17]. This is an example of statutory inquiry established by legislation. In 2000 in the Republic of Ireland the Minister for Health and Children stabled the Dunne Post Mortem Inquiry[18], it is not established by legislation but at request of ministers. Another important inquiry is, commonly known in Ireland as Ryan Commission[19]. It is one of a range of measures introduced by the Irish Government to investigate the extent and effects of abuse on children from 1936 onwards. The Commission’s work started in 1999 and it published its public report, commonly referred to as the Ryan report, on 20 May 2009 recommending changes to institutions that deal with children in Ireland. In summary, inquiries are seeking or request for truth, information, or knowledge. It is a useful mechanism for citizens to search for the truth regarding harm caused by the state. Inquiries have helped to restore public confidence through an investigation of the facts and timely and effective recommendations to prevent recurrence of the matters causing concern. Many inquiries have helped to bring valuable and welcomed improvements in public services.

They are different from courts, focused on finding the truth and setting confidence in the state. Strength of inquiries is that they hold the state to account for their actions in public manner. There are advantages from taking the evidence in public. Witnesses are less likely to magnify or push responsibility in a public sphere. Other witnesses were more likely to appear, as it was propagate. All of this is different from courts were witnesses are called by court. Inquiries hold the constitutional doctrine of rule of law. A key weakness is the expense and time. The Bloody Sunday took over 11 years, and cost 200 million pounds, heard from more than 2,500 witnesses (900 orally) and assessed a mountain of evidence. The Widgery Tribunal[20] took less than a month and was described as a ‘whitewash’ by the families of the victims and their supporters.

Both judicial review and inquiries are important to challenge the government by citizens, although they could be expensive and time consuming. No straightforward access to obtain Legal Aid. Public confidence in the state is necessary to keep stable society.

Bibliography

Cases:

• Re Duffy [2008] UKHL 4
• GCHQ [1985] AC 374
• Colaiste Feirste v Department of Education [2011] NIQB 98
• Royal Brompton & Harefield NHS Foundation Trust [2011] EWHC 2986
• Re JR1’s Application
• Loreto Grammar School [2011] NQB 30

Legislation:

• Judicial Review,
• The Inquiries Act,
• Order 53,
• Human Rights law,
• Parliamentary sovereignty,
• Separation of powers,
• Act of Parliament,

Journal articles:

• Emma Ireton ‘How public is a public inquiry?’ Nottingham Trent University P.L. 2018, Apr, 277-298

• James A. Grant ‘Reason and authority in administrative law’ C.L.J. 2017, 76(3), 507-536

• Mark Elliot ‘The rule of law and access to justice: some home truths’ C.L.J. 2018, 77(1), 5-8

• Poole T ‘The Reformation of English Administrative Law’ [2009]68(1) Cambridge Law Journal 142-168
• Louis Blom-Cooper ‘Public Inquiries: Wrong Route on Bloody Sunday’ Louis P.L. 2018, Apr, 364-367

• Thomas Adams ‘Ultra vires revisited’ P.L. 2018, Jan, 31-43

Academic sources:

• Peter Leyland; Gordon Anthony Administrative Law Textbook 7th Edn 2013
• Elizabeth GiussaniConstitutional and Administrative Law Textbook 1^st Edn 2008
• Chris Taylor Law Express: Constitutional and Administrative Law
• Mark Ryan Unlocking Constitutional and Administrative law 2007

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[1] Introduction to administrative law, Peter Leyland and Gordon Anthony 7^th edn.

[2] Public law project, short guide 03

[3] In certain circumstances, judicial review claims can be heard by Upper Tribunal.

[4] Judicial Review in Northern Ireland, a Guide for non governmental organisation

[5] [2008] UKHL 4

[6] House of Lords publications session 2007-08

[7] The right or capacity to bring an action or to appear in a court – Oxford Dictionary.

[8] The GCHQ case [1985] AC 374

[9] [2011] NIQB 98.

[10] [2011] EWHC 2986.

[11] The applicant was an eight year old girl who challenged the Chief Constable’s decision to introduce tasers for use by the PSNI.

[12]Board of Governors of Loreto Grammar School’s Application [2011] NQB 30; Re Loreto Grammar School’s Application [2012] NICA.

[13] “The Legitimacy of Judicial Review” (2003) P.L. 286

[14] Elliot, Beatson, Matthew’s & Elliot’s Administrative law (OUP, 2005)

[15] The six cardinal principles of fair procedure under the Tribunals and Inquiries Act 1921 devised by Lord Justice Salmon.

[16] The Franks Report of 1957 was issued by a British committee of inquiry chaired by Sir Oliver Franks in respect of growing concerns as to the range and diversity of tribunals, uncertainty about the procedures they followed and worry over lack of cohesion and supervision.

[17] Lord Saville was appointed to chair in the second Bloody Sunday Inquiry, incident when in 1972 in Derry, 27 people were shot by members of 1^st Battalion of the Parachute Regiment, resulting in fourteen deaths.

[18] Post mortem examination policy, practice and procedure in the State since 1970, and in particular as it relates to organ removal, retention, storage and disposal by reference to prevailing standards both in and outside of the State, to examine the application of these policies, practices and procedures in hospitals.

[19]After its chair, Mr Justice Seán Ryan

[20] The Widgery Tribunal opened in Coleraine, Northern Ireland, on 14 February 1972, with Lord Widgery announcing that it would be “essentially a fact-finding exercise”.