The Gazette 1995

DECEMBER 1995

GAZETTE

The Judge Over Your Shoulder - Judicial Review in Profusion

The number of judicial review cases grows year after year. Such is the plethora of judicial review cases that The Irish Digest 1983 - 1993, published by the Law Reporting Council, contains summaries of 135 reported cases under the heading of Judicial Review. Many hundreds of judicial review cases have not been reported because they do not add to our jurisprudence. Judicial review is causing a quiet revolution in Irish law. Yet many practitioners are unaware of the remedies under Order 84 of the Rules of the Superior Courts, 1986, the prime vehicle for judicial review. "Generations of solicitors never studied the practice andprocedure in relation to judicial review. Knowledge of thejudicial review procedure was considered solely a matterfor barristers. Accordingly, many solicitors remained in complete awe of the procedure The concept of judicial review of administrative action is exemplified in the remedies of certiorari, mandamus and prohibition which were formally referred to as State Side Orders. Before the foundation of the State these orders were collectively known as prerogative writs. Generations of

solicitors never studied the practice and procedure in relation to judicial review. Knowledge of the judicial review procedure was considered solely a matter for barristers. Accordingly, many solicitors remained in complete awe of the procedure. The development of judicial review as a system of administrative law is certainly one of the pre-eminent achievements of the Irish Courts in recent times. In many senses, judicial review has b e c ome a citizen's "we a pon" in the modern democratic state. Albert Venn Dicey, the Victorian jurist, would have regarded the development of judicial review in these islands as a form of legal blasphemy. But in many senses, judicial review has emerged as a counter-weight to the growth of executive power in all its various guises. In Ireland, the concept of judicial review is a process which is employed in two specific legal contexts. Firstly, it is a process whereby laws as enacted by the Oireachtas can be reviewed by the High Court and Supreme Court and struck down as invalid if inconsistent with the 1937 Constitution. This aspect of judicial review is proclaimed explicitly and implicitly in several provisions o f the Constitution. Secondly, judicial review is a procedural process whereby an aggrieved person can seek

relief in the public law domain. In essence, in this context, judicial review is a speedy remedy whereby the supervisory jurisdiction of the High Court is invoked in relation to decisions made in the exercise of powers conferred by public law. Many public and statutory bodies are subject to control by judicial review. These include, where appropriate, Ministers and Government Departments, the District and Circuit Courts, local authorities, statutory tribunals and semi-state bodies when exercising their statutory powers. The public law remedies of certiorari, mandamus and prohibition cannot be used to determine the private rights of parties nor can these public law remedies be used to determine disputes in relation to bodies that derive their authority from contract or the consent of their members. This was confirmed in the leading case of Colquhoun v D Arcy [ 1 9 3 6] IR 641 where it was held that the General Synod of the Church of Ireland could not be restrained by the public law remedy of prohibition as the Synod derived its authority from contract and the consent of its members and not from the common law or statute. Further, the public law remedies of certiorari, mandamus and prohibition do not automatically apply to aggrieved persons in their relations with public bodies. These public law remedies apply only to public bodies

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