The Gazette 1989

GAZETTE

FEBRUARY 1989

BOOK REVIEWS NEW DIRECTIONS IN JUD I C I AL REVIEW. Current Legal problems. By J. L. Jowell and D. Oliver (Editors) [London: Stevens & Sons, 1988. £15 Sterling]. Irish Administrative law has devel- oped significantly in the last decade. The supervisory jurisdict- ion of the courts is often exercised over administrative and govern- ment processes through the pro- cedure known as judicial review. The Rules of the Superior Courts (S.I. No. 15 of 1986) introduced a comprehensive procedure regulating applications for judical review whilst retaining the individual remedies including certiorari, mandamus and pro- hibition. Jeffrey Jowell, Professor of Public Law, University College, London and Dawn Oliver, Senior Lecturer in Law, University College, London, present five essays relating to issues which pose challenges to administrative law and which deserve critical evaluation in both jurisdictions. These five issues relate to the public/private law distinction, the extension of the scope of authorities that are subject to judicial review, the developing doctrine about the protection of legitimate expectation, the principle of proportionality as a ground for review and the increasing supervision by the courts of the policy-making process. Michael J. Beloff, Q.C., dis- cusses the issue of the boundary walls of procedural exclusivity which have been built within the framework of Order 53 of the UK Rules of the Supreme Court - the distinction between private law and public law. Order 53 is similar to this jurisdiction's Order 84. It is noteworthy, however, that the changes effected by Order 53 were given statutory backing in sections 29 and 31 of the UK Supreme Court Act, 1981. Order 84 in this jurisdiction did not

receive similar statutory endorse- ment. The ambit of the House of Lords decision in O'Reilly -v- Mackman [1983] 2 A.C. 237 and its subsequent refinement in Wandsworth -v- Winder [1985] A.C: 461 and other cases is discussed in some detail. In O'Reilly -v- Mackman the House of Lords laid it down that there exists a distinction between public law and private law which goes to the essence of the civil jurisdiction of the English courts; accordingly, Order 53, subject to such exceptions as may be determined on a case by case basis, provided an exclusive procedure by which the validity of a decision of a public authority could be challenged. It remains to be determined whether the Irish courts will follow the rationale propounded in O'Reilly -v- Mack- man. Beloff rightly argues that the developing willingness of the courts to act as watchdogs on the executive will be undermined if litigants find themselves en- meshed in a new web of pro- cedural technicalities. In his paper on "What is a public authority for the purpose of judical review?" David Pannick, Fellow of All Souls College, Oxford, examines the case law on this important issue and states that there remains considerable uncertainty about the directions in which judicial review will travel. Patrick Elias, Barrister, in his essay on "Legitimate expectation and judicial review" examines the cases in which the courts have defended the "legitimate expec- tations" of applicants for judicial review. Irish courts have adopted the doctrine of "legitimate expectation" which has been considered by Murphy J. in Goldrick and Coleman -v- Dublin Corporation, High Court, November 10, 1986 and by the Supreme Court in Webb -v- Ire/and [1988] ILRM 565. Jeffrey Jowell, one of the co- editors and Anthony Lester, Q.C. editors, Master of the Bench of Lincoln's Inn, in their paper on "Proportionality: neither novel nor

dangerous" trace the origin of this concept in German, French and European Community Law and in the jurisprudence of the European Convention on Human Rights. Proportionality - the principle that requires a reason- able relation between a decision, its objective and the circum- stances of a given case - has long been accepted in Irish Law under the guise of other names but the concept has potential for further development. The courts are increasingly scrutinising the policy making process. Dawn Oliver, one of the co-editors in "The Courts and the Policy Making Process" argues that the courts have extended the frontiers of judicial review beyond decision-making and into the policy-making process. This book is confined to English law. However, many of the issues considered in this book apply to this jurisdiction. Practitioners in- terested in extending the frontiers of our judge-made law will find many interesting concepts within these pages. Eamonn G. Hall THE LARCENY ACT 1916 By J. Paul McCutcheon. Published by Round Hall Press, 1988. Price £25.00 h.b. £17.50 p.b. When I was a Law Student I had difficulty reconciling the concept that every man is presumed to know the law with reality as I saw it. Actual practice in law has served to accentuate rather than alleviate my problem. Statutes, Statutory Instruments, reported decisions of different Courts in both this and other jurisdictions, unreported decisions, European Regulations, Directives - it is obviously impossible for any one person to know the law. The inherent difficulty is compounded when the Statutes setting out the law are not available to the public. That is the position with the vast

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