{"id":483,"date":"2019-03-01T09:48:43","date_gmt":"2019-03-01T09:48:43","guid":{"rendered":""},"modified":"2019-06-11T10:25:01","modified_gmt":"2019-06-11T10:25:01","slug":"judicial-review-pros-cons-6754","status":"publish","type":"post","link":"https:\/\/www.lawteacher.net\/free-law-essays\/administrative-law\/judicial-review-pros-cons-6754.php","title":{"rendered":"Strengths and Weaknesses of the Judicial Review Process"},"content":{"rendered":"

\u2018With reference
\nto examples from Northern Ireland and the Republic of Ireland, academic
\ncommentary, and applicable case law, discuss the strengths and weaknesses of
\nInquiries and the Judicial Review process as mechanisms used to challenge
\nadministrative action.\u2019<\/em><\/strong><\/p>\n

Administrative law[1]<\/a> 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<\/a> process and Inquiries are two important areas of administrative law used by citizens in Republic of Ireland and Northern Ireland to secure accountability<\/a> 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. <\/p>\n

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

Judicial
\nreview is not an appeal. The Court generally checks how the body get at its
\ndecision rather than the merits of the actual decision itself. Judicial review
\nis a remedy of last resort. This means that it is usually only appropriate to
\ntake a judicial review action when there is no adequate alternative way to
\nresolve the issue, such as an appeal[4]<\/a>.<\/p>\n

An example
\nof judicial review in Northern Ireland could be Re Duffy<\/em> case[5]<\/a>. <\/p>\n

Mr Duffy applied for judicial review to challenge the
\nappointment by the Secretary of State for Northern Ireland of two new members
\nof the Parades Commission for Northern Ireland. Mr Duffy\u2019s challenge was based
\non a number of grounds directed to the suitability of Mr Burrows and Mr Mackay
\nto be members of the commission and to the process leading to their
\nappointment. His challenge was upheld, on a limited ground, by Morgan J but was
\nrejected by a majority of the Court of Appeal in Northern Ireland[6]<\/a>.
\nIt is worth to remember that judicial review is not concerned with the
\ndecision, but with the decision making process. Its role is more supervisory
\nrather than appellate. The procedure is set out in Order 53 of rules of the
\ncourt. This includes pre-action protocols, which are a series of steps to be
\ntaken by a person who wishes to bring a claim to court.  The applicant must also lodge an application
\nin a limit of three months. Must have \u2018locus standi\u2019[7]<\/a>
\nor standing. Judicial review is not available as a right and the applicant need
\nto ask the court for permission to avail of this mechanism. There are three
\ngrounds for judicial review in Northern Ireland drafted by Lord Diplock,
\nRoskill and Scarman in GCHQ case[8]<\/a>.\n<\/p>\n

A decision
\nmay be challenged if, in arriving at the decision, the body: acted illegally
\n(case study: Colaiste Feirste v Department
\nof Education[9]<\/strong><\/a><\/em>);
\nacted in a procedurally unfair manner (case study: Royal Brompton & Harefield NHS Foundation Trust<\/em>[10]<\/a>);
\nacted irrationally (case study: Re JR1\u2019s
\nApplication<\/em>[11]<\/a>) or acted contrary to an individual\u2019s legitimate
\nexpectation as protected by law (case study: Loreto Grammar School[12]<\/strong><\/a><\/em>).
\nThe fourth one has to be along with the human right law. <\/p>\n

It is
\nimportant to remember that judicial review have their strengths and weaknesses
\nthat must be taken under consideration before starting the process. <\/p>\n

Judicial
\nreview is a key component of the UK constitution and linked to the three
\nconstitutional theories. Parliamentary design is a key feature of judicial
\nreview. Ensuring government organisations act in accordance with statutory
\npowers admit is one of the main grounds. In this sense judicial review underpins
\nparliamentary sovereignty by application of the \u2018ultra vires\u2019, which is
\nconstitutional justification for judicial review arises from the need to ensure
\nthat decision-makers act within the powers conferred by Parliament. The
\nmodified theory[13]<\/a> holds
\nthat Parliament has a general intent in granting discretionary power and this
\nshould be exercised in accordance with the rule of law. This theory holds
\nParliament sovereign with the judiciary subordinate to its will. <\/p>\n

Extension of
\nsome grounds of review raises question about the proper role of the courts. It is
\nwhether the judiciary limits the power of the legislature, or the judiciary is
\nlimited by the legislature. <\/p>\n

\u2018The
\nprinciples of administrative justice are rooted in the constitutional bedrock
\nof the rule of law\u2019[14]<\/a>.
\nThe rule of law seeks to control and impose limits on government by insisting
\nthat government acts in accord with law and operates within the law. Judicial
\nreview could also be seen as a manifestation of the separation of powers,
\nensures that no body has too much power and supposes a system of checks and
\nbalances to guard against abuse of power. The doctrine is justifying court
\nintervention and is limiting the role of the courts. The courts are limited to
\nreviewing the decision, then leaving the body charged with making the decision
\nto make the decision against correctly. The courts then avoid impinging on the
\nconstitutional role of the Executive to administer the law.  <\/p>\n

Judicial review is available because
\nthe \u201csource of power\u201d test is complied. This test clarify that judicial review
\nis only available where the decision or possibly non-decision of the public
\nbody relates
\nto that citizen\u2019s statutory powers or powers under the prerogative or common law must relate to the exercise or non-exercise of those powers further
\nto the body\u2019s public law duties to the claimant. Public services are now
\ncontracted out by government to private sector. They have assumed
\nresponsibilities for the provision of goods and services to the general public.
\nThose bodies would potentially be beyond the scope of judicial review if we
\napplied the source of power test. In last few decades, the courts have reacted
\nto the changes in the structure of the government to bring these bodies within
\nthe circuit of the supervisory jurisdiction. Judicial review also has the
\nextension to hear cases relating to some prerogative powers expanding their
\nscale. <\/p>\n

One of the weaknesses of the judicial
\nreview process which is important for a person who is applying for, is the cost
\nand the limited circumstances, specially when legal aid need to be granted.
\nThese limits the justice for citizens, who fall outside the narrow legal aid ground.
\nAnother weakness is the limited scope of remedies available to the applicant.
\nJudges very often do not grant remedy by way of quashing the decision of the
\npublic body. In most cases the decision is back to the public body to
\nreconsider in light of the court remarks. Also it needs to be taken under
\nconsideration 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.<\/p>\n

Different
\nfunction within the administrative process belongs to inquiries. They are often
\npart of the original decision-making process, they are frequently activated
\nonly after an appeal has been lodged against the initial government decision.
\nInquiries are designed to establish facts by way of an inquisitorial process.
\nThey are not made to seek out criminal or civil liability. Apart from being part of the
\ndecision-making process, inquiries assume many forms and have very disparate
\nfunctions and aims. Final outcome will have a profound impact on individuals
\nand sometimes on whole communities. <\/p>\n

The
\ngovernment may establish inquiries to investigate an issue considered to be of
\npublic importance. Such inquiries may be a device to deflect criticism and
\nthereby defuse a potential crisis by conveying the impression that the issue is
\nunder impartial investigation. More formal version of inquiries may be set up
\nunder the Inquiries Act 2005, which repealed the Tribunals of Inquiry
\n(Evidence) Act 1921. These are used only very rarely, where an event has caused
\nparticular political controversy or where disaster has caused such public
\nconcern that it is felt appropriate to hold searching investigation into the
\nfacts. <\/p>\n

Constitutional
\nfunction is to investigate issues of national concern, consider the evidence
\nand set recommendations in a form of a report. Inquiries are not adversarial as
\nin normal court as they function in an inquisitive manner. They are more
\nconcerned with the care process of handling witnesses, which is called Salomon
\nprinciples[15]<\/a>. They are designed to
\nprotect fully the interest of any witness, they also introduce a substantial
\n\u2018adversarial\u2019 element into proceedings, with, for example, the right to call
\nand cross-examine witness. This process is to bring public confidence
\nin the state. The Franks Report 1957[16]<\/a> said that inquiries should
\nbe fair, open and impartial. This was the case in the \u2018Bloody Sunday\u2019 inquiry
\nalso called Saville report [17]<\/a>. This is an example of
\nstatutory inquiry established by legislation. In 2000 in the Republic of
\nIreland the Minister for Health and Children stabled the Dunne Post Mortem
\nInquiry[18]<\/a>, it is not established by
\nlegislation but at request of ministers. Another important inquiry is, commonly
\nknown in Ireland as Ryan Commission[19]<\/a>. It is
\none of a range of measures introduced by the Irish Government to investigate
\nthe extent and effects of abuse on children from 1936 onwards. The Commission’s
\nwork started in 1999 and it published its public report, commonly referred to
\nas the Ryan report, on 20
\nMay 2009 recommending changes to institutions that deal with children in
\nIreland. In summary, inquiries are seeking or
\nrequest for truth, information, or knowledge. It is a useful mechanism for citizens
\nto search for the truth regarding harm caused by the state. Inquiries have helped to restore public
\nconfidence through an investigation of the facts and timely and effective
\nrecommendations to prevent recurrence of the matters causing concern. Many
\ninquiries have helped to bring valuable and welcomed improvements in public
\nservices. <\/p>\n

They are different from courts, focused on finding the
\ntruth and setting confidence in the state. Strength of inquiries is that they
\nhold the state to account for their actions in public manner. There are
\nadvantages from taking the evidence in public. Witnesses are less likely to
\nmagnify or push responsibility in a public sphere. Other witnesses were more
\nlikely to appear, as it was propagate. All of this is different from courts
\nwere witnesses are called by court. Inquiries hold the constitutional doctrine
\nof rule of law. A key weakness is the expense and time. The Bloody Sunday took over
\n11 years, and cost 200 million pounds, heard from more than 2,500 witnesses
\n(900 orally) and assessed a mountain of evidence. The Widgery Tribunal[20]<\/a>
\ntook less than a month and was described as a \u2018whitewash\u2019 by the families of
\nthe victims and their supporters. <\/p>\n

Both judicial review and inquiries are important to
\nchallenge the government by citizens, although they could be expensive and time
\nconsuming. No straightforward access to obtain Legal Aid. Public confidence in
\nthe state is necessary to keep stable society. <\/p>\n

Bibliography
\n<\/h2>\n

Cases:<\/h3>\n