Judicial review of administrative action Paper Example

This essay will discuss whether 'Judicial review of administrative action does little to protect the rights of the individual against the power of the state. ' It is believed that the origins of Judicial Reviews is found in the case of a Chief Constable of Brighton who was relieved of his duties without the chance to put his case forward before dismissal. [1] The number of judicial review cases in England and Wales rose from 160 in 1974 to over 1,230 in 1985, and to some 3,200 in 1994.

[2] Ackerman LWH, states that: Those who are committed to the establishment of a non-racial, human rights-based democracy in South Africa appear largely to agree that a system of judicial review, in the wide sense of the expression, is essential not only for the effective protection of human rights, but also for the viability of a new constitutional dispensation. [3] Clearly we have commentators arguing that JR is a thing to behold and essential to Human Rights.

A Judicial Review (JR) should be conducted in accordance with the rules[4] where the function is to determine if legal rules and procedures were correctly followed[5]. Some might argue this administrative device gives the public power to question the executive and others may argue it’s a way of keeping the lawmakers in check. The legal historian Maitland said in 1888: Government has taken responsibility for large areas of social regulation and public services, which means it possesses an enormous ability to affect people’s lives.

[6] Close to 100 years later Lord Derry Irvine said: It has been the massive expansion of the administrative state which more than any other factor’ has prompted judges to develop the principals of judicial reviews. [7] When one remembers the words of Dicey LJ[8], it can be argued that a JR is at odds with his principle of Parliamentary Sovereignty. For example when a piece of legislation or a decision is clearly wrong or a public body has acted Ultra Vires and all other legal avenues have been exhausted[9] relief my be sought via a JR.

One may wish to thank Lord Diplock who established the three grounds for JR’s in the CSU case, 'illegality', 'irrationality', and 'procedural impropriety'. [10] Take for example the announcement of the Loretto Grammar School project by the Dep’t for Education[11]. It was viewed by many that this was a grand announcement made by the Department yet despite mention of ? 14. 6m funding nothing happened. Following this a member of the public initiated a JR against the departments decision. Unthinkable without the aid of a JR, here the public were holding a Minister and a Department to account for their words and inaction.

Some may argue this is not a protection of rights rather its a enforcement of duties agreed to be done, or are they one and the same? It appears when examining cases; consultation is one of the most challenged failures by the Executive. In the case of Mrs Coughlan a disabled woman in a nursing home at Newcourt Hospital Devon, she was given an assurance she could stay in her nursing home as long as she wished to remain there and it was argued on her behalf that this gave rise to a legitimate expectation.

In fact similar to that of the Loreto[12] case where there was also a legitimate expectation. It was held in the Coughlan case: That if a public body exercising a statutory function made a promise as to how it would behave in the future which induced a legitimate expectation of a benefit which was substantive, rather than merely procedural, to frustrate that expectation could be so unfair that it would amount to an abuse of power. [13] Here I believe is an example where a JR clearly has protected the rights of Ms Coughlan and she remains there to this day (checked 25th April 2016).

When Mid and East Antrim Council allowed oil exploration in an area of special scientific interest, there was very real anger in the community, particularly because of a lack of consultation and the way the mater was being steamrolled through council. Consultation was key, and it didn’t take place, as it should have. After all legal avenues with the council failed, the only option was to initate a JR against the council. Again the question arises has a JR protected the rights of the public or will it provide a chance of stopping further drilling?

This is clearly a dilemma; on one hand taking a JR gives the public power to question the rules used to make the decision but not necessarily to prevent the action from continuing. If this had been a Human Right breach then one might have considered Art 6 of the ECHR as it provides additional grounds for review, by giving a right to an independent and impartial tribunal. So whilst the JR has given an opportunity to question the legality of the way the decision was arrived at, it has not stopped the drilling yet, however the JR is due to take place on the 6th May 2016.

Lord Justice Girvan explained in extremely clear terms following the Loretto School case, how he feels about the behaviour of Departments and the Executive. [14] In support of this, Simon Brown J. concluded in Angell[15] that a decision accompanied by inadequate reasons “cannot on that ground alone” be quashed, but that a quashing order could be issued if the absence of reasons permitted an error of law to be inferred. [16] This may mean there is duty to give reasons for a decision, but it is not sufficient a duty to overturn a decision, in the way the duty to act fairly, breach of which renders the decision invalid does.

Might it be a fairer system that when a JR finds inadequate reasoning behind a decision then the decision should be quashed as well? As we know rights can go for and against, and with a JR everything can literally depend on the Judge who is presiding over the JR. This too can be a considerable negative for the JR, whereas with a jury there will be a more balanced view on the matter, begging the question does a single judge in a JR strengthen ones rights or is a jury better placed to decide on the outcome?

In the PILS project update of May 2011, it can be seen that: restrictions on an anti-sodomy advertisement placed in a local paper by a member of the Sandown Free Presbyterian Church breached Article 10 of the European Convention on Human Rights; the right to freedom of expression[17] A JR can work to improve the public’s rights but in the case where one section of the community are quite rightly deeply offended by outrageous adverts, a JR has found in favour with a community who are vehemently opposed to MSM activities, and the judge found in favour of them.

In another interesting case Northern Ireland Human Rights Commission's Application, [18] the public were told that non-married couples were prevented from or even applying for adoption in Northern Ireland. Despite the whole rationale behind adoption was and is to provide a stable home for children, some in our society believed that could and should only include married couples. This needless to say ruled out same sex couples and those in a civil partnership (the majority of whom are same sex partners) with the stroke of a pen.

Consequently their rights have been trodden upon. No doubt it could be argued by the Department, that sexual orientation was not behind the wording of the Act, but given the recent rulings on so called “Gay Blood” it is hard to understand any other interpretation. It appears their Lordships felt the same. They explained: The legislation entails that a gay or lesbian person must choose between being eligible to adopt or affirming their commitment in public in a civil partnership ceremony.

There is no rational basis for the proposition that the current eligibility criteria served the best interests of the child excluding persons from the whole adoption process on the sole basis of their relationship status. [19] Can one deduce from this, that the JR is protecting the rights of same sex couples and individuals against the decision of the Department? [20] One thing the JR has not been able to do is change legislation and this is potentially where the JR might be seen to fail the public.

If we look at the options open to judges in terms of remedies available, they appear to have very little recourse at their disposal. A Judge may make a prerogative order quashing a decision; they may force a public body from acting or ceasing activity for a limited or permanent period, but there is one remedy missing that is more commonly used in the courts than any other and that is damages.

Understandably if a judge awarded damages from a public body to a litigant, then the public would eventually be funding their own damages. If one examines the conflicting rights in the case of abortion in Northern Ireland, you might be forgiven for thinking when you discover how some women have been treated recently, that we are talking about the dark ages, but sadly this is very current.

Only in April 2016, a woman was convicted of procuring an abortion in Northern Ireland contrary to the OAP Act[21], allegedly because (a) none are available here and (b) because the lady concerned could not afford to go to England to legally secure an abortion. Despite the lack of assistance to women here in this regard, the Public Prosecution Service thought it necessary to prosecute, even though our laws are at odds with ECHR and despite the fact that a JR held that the abortion act in Northern Ireland currently breaches human rights legislation.

It’s no comfort to the unfortunate women who are being prosecuted for procuring an abortion, when Human Rights legislation and a Judicial Review[22] find their rights are being trodden upon and one quite rightly can argue has it strengthened their rights? It’s easy to understand how women may feel the process of the judicial review does little to protect them. If as a result of a JR the courts were able to force the legislature to change legislation that breached Human Rights, then maybe the process of a JR would grow the teeth that it appears it may need.