Judicial Reviews in Ireland

In this assignment I will analyse what is the judicial review, how the judicial review is operated, reasonableness and unreasonableness in judicial review and, if for the past thirty years whether there are changes in the procedures.

The Irish court’s position as to whether to grant judicial review on the grounds of administrative unreasonableness has changed significantly over the past thirty years.

The system of administrative law in Ireland is called judicial review and the duty of this judicial review is to regulate the legality of the prolonged public administration of the modern state by ensuring that administrative bodies does not act in excess of jurisdiction. It also protects the rights of individuals which guaranteed by the constitution lawful acts.

The administrative law in Ireland relates to public administrative and government and also the relationship between the private individual. Judicial review takes place within the High Courts to supervise the lower courts and also to ensure that lower courts and administrative bodies do not act beyond or at variance with their essential powers. Judicial review is the main process for challenging public law decisions. Judicial review is a complicated and special area of law in which the courts will review a former decision so as to determine whether it was a lawful decision or not. If the court find that the decision was not a lawful decision, that make the court to set aside that decision, and then the court will then revisit the decision of the case in accord with the law.

Judicial review of a case is important because it is an effective means of securing the legal control of our administrative process. It is effective deterrent to administrative excesses and abuses. Judicial review in Ireland control the appeals and it appears to be the most effective method of imposing or enforcing the demands of the rule of law on the administration.

When is judicial review can be apply and why it has to be apply, judicial review of a case in a state can be review when the individual or private realised that the ruling over the proceeding was not right or when the court were bias about the evidence which lead to disagreement in judgment.

Judicial review basically deal with unhappy decision of a court or a public body, which you have a right to appeal in order to be sure of proper procedure. Judicial review may be the appropriate remedy for issues which are complicating with the rules of law or the courts.

In judicial review of administrative law cases, the reasonableness of decision by the court and unreasonableness has caused issue on how the courts use their discretion. Generally people believe that the courts must use their power to review a case and favour them accordingly. Also the unreasonableness is another ground for seeing a judicial review. According to Hillary Biehler’s book quote:

“The reasonableness in administrative law is the principle of the authorities exercising a discretionary power which has to act in reasonable. Discretion do not empower a man to do what he likes merely because he is minded to do so. He must in the exercise of his discretion do not what likes but what he ought to do. He must by the use of his reason ascertain and follow the course which reason directs.”

The unreasonableness in law

Unreasonableness is the one which can all too easily undermine the distinction between merits and legality. The court cannot set aside a decision of a competent authority merely because it disagrees with the view of that authority. For the court to consider the merits of decisions in the situation of judicial review proceedings is supposed inappropriate as it would involve the court acting as if it had itself been vested with the relevant discretionary power.

The judicial review of decisions was laid down in the United Kingdom Court of Appeal in 1948 in the case of Associated Provincial Pictures Houses Ltd v Wednesbury Corp [1948] 1 K.B 223 in which Lord Greene M.R stated that:

“The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to have taken into account or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority and they have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it.”

The rule also carried into Irish law by Supreme Court in Keegan v Stardust Victims Compensation Tribunal in 1986. Mr Justice Henchy said that “it was not for the courts to substitute their view for that of the tribunal being reviewed”. If there was no error of law or procedure, the courts could only intervene. Henchy J also rejected some elements of Diplock’s reworked approach to unreasonableness. He expressed the idea of anchoring unreasonableness in the concept of accepted moral standards as being a vague, elusive and changing body of standards which ought not to be relied upon but regarded the true heritage of Wednesbury.

“The impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense. The necessarily implied constitutional limitation of jurisdiction in all decision making which affects rights or duties requires, inter alia, that the decision maker must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision.”

The unreasonableness in the case of O’Keeffe v An Bord Pleanala [1993] 1 IR 39. Finlay CJ emphasised the rarity of a decision being overturned on the basis of unreasonableness. Finlay CJ said that the circumstances under which the court can intervene on the basis of irrationality with the decision maker involved in an administrative function are limited and rare. It is necessary that the applicant should establish to the satisfaction of the court that the decision making authority had before it no relevant material which would support its decision.

Also in the case of SIAC Construction Ltd v Mayo County Council [2002] IESC 37, the respondent advertised for tender a major sewage works at Ballinrobe, Ireland. The award was to go to the most economically advantageous tender. The price submitted by SIAC Construction Ltd, the appellant, was the lowest after mathematical adjustment. However, the consulting engineer engaged by the respondent found that a competing tender might ultimately prove to be the lowest. The appellant claimed in High Court proceedings that the respondent, by relying on this conclusion, breached the EU public procurement rules.

Laffoy J applied the reasoning in O’Keeffe and decided that the decision was not unreasonable. In essence the Council were the body entrusted by the legislature with the particular skill and expertise to determine which was the better bid. There was little difference between the bids and the accuracy of the bids could not be known until the work began. Therefore, the expertise of the council in determining how things would transpire was essential in looking at the bids.

Another case is C.O.I v Minister for Justice, Equality and Law Reform [2007] IEHC. The applicant was refused asylum but his sister-in-law was successful on appeal before the Refugee Appeals Tribunal. The applicant sought the consent of the minister under section 17(7) of the Refugee Act 1996, as amended, to allow him to make a further application for asylum. The request was refused, stating that the new evidence did not significantly add to the likelihood of the applicant qualifying for asylum on the totality of the evidence already available and considered.

The applicant challenged this refusal by way of judicial review, claiming that the Minister applied the wrong legal test and had breached his right to equality of treatment. Mr Justice McGovern said that:

“Undoubtedly O’Keeffe v An Bord Pleanala must apply… but it is my view that having regard to the stated purpose of the 1996 Refugee Act, the test of ‘anxious scrutiny’ should also apply. There may be cases which might not come within the O’Keeffe definitions of irrationality but might legitimately fall into review, and for that reason it must be reviewed by the courts.”

The case of Sweetman v An Bord Pleanala [2009] granted consent to Galway to develop the city outer bypass on a configuration crossing the Lough Corrib SCI. At the date of the decision the Irish Government had notified the site as a candidate SAC but the Commission had not yet listed it. The work would result in permanent loss of 1.47 hectares of a total of 270 hectares of limestone pavement, a priority habitat type listed in Annex and the main reason for proposing the site’s listing.

Article 10a of Directive 85/337/EEC required a review of the substantive and procedural legality of relevant decisions be put in place by member states. This provoked discussion of the adequacy of O’Keeffe reasonableness in discharging this obligation. Clarke J pointed out that in considering whether sufficient review was available in accordance with Article 10a, it was necessary to take fully into account all grounds of judicial review, not merely unreasonableness.

The Meadow v The Minister for Justice, Equality and Law Reform [2010] IESC 3 concerned the standard of reasonableness which should be applied. The applicant, from Nigeria, sought asylum in Ireland on the basis that she would be subjected to female genital mutilation (FGM). The Refugee Applications Commissioner recommended that she not be declared a refugee, and this recommendation was confirmed by the Refugee Appeals Tribunal.

The applicant then sought leave to remain on humanitarian grounds from the Minister, arguing that FGM amounted to torture or inhuman and degrading treatment and that returning her to Nigeria would violate the State’s obligations under Article 3 of the ECHR and Article 1 of the UN Convention against Torture.

The majority of the Supreme Court accepted the applicant’s appeal and granted leave to apply for judicial review. The principle of proportionality requires a reasonable authority exercising an administrative power to maintain a balance between the purpose it seeks to achieve and the means employed to achieve that purpose. The courts are entitled to consider the proportionality of a decision.

Fennelly J held that the Supreme Court was not shifting the existing test laid down in O’Keeffe. Denham J found that the O’Keeffe test had been construed too narrowly and that judicial review had to be an effective remedy. She stated that where fundamental rights are factors in a review they are relevant in analysing the reasonableness of the decision. The majority concluded that there were substantial grounds to believe that the Minister’s failure to give reasons for his decision rendered it unreasonable.

Relevant change in the past years of judicial review

Judicial review in Irish law is changing gradually by way of challenging the constitution. There has been increasing recognition of the importance of an obligation to provide reasons for an administrative decision throughout the common law. The rules applying natural justice have increasingly been applied in a variety of administrative bodies.

The common law principles include:

• Audi alteram partem – the right to be heard.
• Nemo iudex in causa sua – no one should be a judge in their own cause.

These principles have been developed and supplemented by constitutional guarantees. Fair procedures has attained recognition in many cases and the court has established principles relied on not just to bolster procedural guarantees but also as a means of developing substantive ones.

Another issue which changed is the intensity of review. It may vary depending on the subject of the decision and the belief of substantive fairness which may take on added significance in certain circumstances. In the case of R v Ministry of Defence ex p Smith the Court of Appeal stated that the court may not interfere with the exercise of administrative discretion on substantive grounds unless the decision is unreasonable. It was also stated that the more substantial the interference with human rights, the more the court would require by way of justification before it would be satisfied that the decision was reasonable.

There are changes to the practice of judicial review in areas such as asylum law, criminal law and health law. In some cases these challenges have led to landmark changes in the law. The role of proportionality in reasonableness is expressly acknowledged in Article 5(4) TFEU which states that under the principle of proportionality the content and form of Union action shall not exceed what is necessary to achieve the objectives of the treaties.

Irish courts are comfortable with the principle that it requires a more searching standard of review, one often exceeding the O’Keeffe and Keegan reasonableness test. This allows Irish judges to harmonise their proceedings with the proportionality principle under European law.

Conclusion

According to my view on judicial review, when the court realised that judicial review of a case can cause unreasonableness or commotion they should let the applicant understand that the evidence or documentation cannot support the claim or call attention to the reasonable documents required for review.

Generally the major reason for judicial review is to ensure that individuals are given fair access to the court system and to enable them to have access to fair treatment by the relevant authority. The court must use reasonableness to review cases in the judicial review process and balance the decision that the decision maker has struck.

Unreasonableness has not changed according to the test of Wednesbury or the methods of reasoning in Keegan and O’Keeffe. However, the European Convention on Human Rights Act 2003 shows manifestation and effect in the Irish courts. The Act specifically created obligations on public authorities to act in compliance with the European Convention. It also has a strong cumulative impact on the practice of judicial review in daily cases and in the years to come in issues relating to the courts and judicial review in Ireland.

Bibliography

• Judicial Review of Administrative Action, third edition by Hilary Biehler
• Law and Public Administrative in Ireland by Fiona Donson and Darren O’Donovan
• Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 K.B 223
• Keegan v Stardust Victims Compensation Tribunal (1986)
• O’Keeffe v An Bord Pleanala [1993] 1 IR 39
• SIAC Construction Ltd v Mayo County Council [2002] IESC 37
• C.O.I v Minister for Justice, Equality and Law Reform [2007] IEHC
• R v Ministry of Defence
• Sweetman v An Bord Pleanala & Ors [2009] IEHC 17
• Meadow v The Minister for Justice, Equality and Law Reform [2010] IESC 3