Strengths and weaknesses of the Judicial Review process and Inquires as mechanisms used to challenge administrative action on the island of Ireland.

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Administrative law is an area of law that controls and constrains government powers. It provides for transparency and accountability to the process of government. Administrative law is an area that has grown enormously in scope and significance in recent times. This essay will discuss the Judicial Review process and Inquires which are two important areas of administrative law used by citizens in Northern Ireland and the Republic of Ireland to pressure test public bodies and hold them to account. The social contract that exists between citizens and government, insists that citizens must stick to the rules and in return the state must discharge its obligations and duties. However, this relationship is naturally imbalanced. The state has most of the power and resources making the citizen the significantly weaker party. Therefore, to offset this imbalance there are check and balance mechanisms in place that allows the citizen to directly challenge and pressure test administrate action. These mechanisms attribute to public confidence in government by snuffing out maladministration which in turn contributes to a stabile society. This essay will focus on the strengths and weaknesses of judicial review and inquires. It will tease out strengths and weaknesses in the judicial review process by focusing on the procedural hoops that the applicant must jump through when seeking remedy. It will also examine inquires in both Irish jurisdictions.

Judicial Review

Judicial review is an increasingly popular mechanism used by individuals or interest groups, to challenge the administrative action of public bodies. It has risen sharply in the UK from 685 cases in 1982 to 10,600 in 2010. Both jurisdictions on the Island of Ireland deal with administrative law by way of Judicial Review which generally takes place in the High Court as part of the normal court system. This differs from countries like France which has its own separate administrative court the Consiel d’ Etat. An example of judicial review in Northern Ireland would be the RE Duffy case concerning the irrational appointed of unionist hardliners to the Parades Commission. It is important for the individual or interest group to be aware that this mechanism should only be used, if all other available avenues to seek redress have been exhausted. Judicial review is “not concerned with the decision, but with the decision making process”. Therefore, judicial review role is supervisory rather than appellate. The judicial review procedure is set out in Order 53 of rules of the court contains procedural hoops for the applicant to jump through. This includes a pre-action protocol which contains a need to make the relevant public body aware of your grievances in writing. The applicant must also meet a strict time limit of three months to lodge an application there are few exceptions made by the courts. It is important to note that an applicant for judicial review must have ‘locus standi’ or standing. This means they must be directly affected by the public bodies’ action or omission. However, interest groups who are better equipped to raise the relevant issue can also meet the criteria for standing. Moreover, as judicial review is not available as a right, the applicant must seek permission from the courts to avail of this mechanism. This acts as a filtering device to weed out ‘vexatious’ claims that have no foundation saving the court time and expense. There are generally three grounds for judicial review in the UK and Northern Ireland laid out by Lord Diplock in the ‘GCHQ’ case. One or more of these grounds must be activated for a successful claim. These are Illegality, Irrationality and Procedural Impropriety. A fourth emerging ground of proportionality has come into play with the emergence of human rights law. In summary judicial review is a method available to those with sufficient interest who have passed through the relevant procedural hoops, to challenge the act or omissions of bodies who act in the public interest. However, it is important for those seeking remedy by way of judicial review to be aware there are particular strengths and weaknesses that must be taken into consideration before deciding to avail of this process. These will be discussed in the following paragraphs.

Judicial Review Strengths

One of the major strengths of judicial review is that it upholds and protects key constitutional doctrines. Lord Philips said that the “…power of the judges to review the legality of administrative action is a corner stone of the rule of law…” Judicial review can also be seen as a manifestation of the separation of powers doctrine as it allows the judicial branch of the state to check and balance the executive and hold it to account. Judicial review also upholds parliamentary sovereignty by application of the ‘ultra vires’ doctrine which ensures that public bodies act within the powers delegated to them by statute. Subordinate legislation can also be stroke out by judicial review for acting outside powers laid down by a primary act of parliament. However, the ability of the courts to strike down a primary Act of Parliament is somewhat unclear and is a topic of debate amongst senior judges and academics. One other strength of the judicial review process is that some private bodies that act in the public interest can also be amenable depending on the scope of their public function. It could also be said that the filter system of seeking permission is strength of the judicial review process, as it frees up important time and resources to deal with more promising cases. Judicial review also has the scope to hear cases relating to some prerogative powers widening its scope. However, these are limited and do not include some powers such as the declaration of war.

Judicial  Review Weaknesses

One of the key weaknesses of the judicial review process which may be considered by an applicant is the cost and the limited circumstances were legal aid will be granted. This limits access to justice for those who fall outside the narrow legal aid scope. This limitation of justice scars on the concept of the rule of law. Another weakness of the judicial review process is the limited scope of remedies available to the applicant. Judges tend not to always grant remedy by way of quashing the decision of the public body or ordering a specific performance of them. It is very likely that the courts will send the decision back to the public body to reconsider in light of the courts remarks. Moreover, despite the popular belief judicial review rarely results in compensation for the injustice that the victim claims to have suffered. The function of judicial review is to ensure that public bodies carry out their tasks in a fair and just way not to dish out compensation.

Inquires Intro
Inquires are designed to establish facts by way of an inquisitorial investigation process. Inquires are not courts and are not designed to seek out criminal or civil liability. The constitutional function of inquires is to properly investigate issues of national concern, consider the evidence and make recommendations by way of a report. This process reinstalls public confidence in the state. Therefore the bedrock of inquires is to find out the truth in matters of public interest, that affects citizens and in doing so making sure they do not happen again. The Franks Report 1957 said that inquires should be fair, open and impartial This was case locally in the ‘Bloody Sunday’ inquiry which resulted in the much awaited Saville report. There had been much mistrust in the British Army and Government in the aftermath of the killing of fourteen civilians on the streets of Derry. The Saville report numbed much of the mistrust. Inquiries are not adversarial as in a normal court as they function in an inquisitive manner. They take much more care in handling witnesses after recommendations made by Lord Salmon. There are two types of inquires. The Bloody Sunday Inquiry mentioned earlier would be an example of a statutory inquiry established by legislation. Not all inquiries are set up on a statutory basis. In 2000 in the Republic of Ireland the Minister for Health and Children established the Dunne Post Mortem Inquiry. These are not established by legalisation but at request of government ministers. As with the United Kingdom inquires is an expanding mechanism used to hold public bodies to account in the Republic of Ireland. One important inquiry known as the Ryan Commission investigated the extent and effects of abuse on children in Irish institutions from 1936 onwards. This resulted in the Ryan Report of 2009 recommending changes to institutions that deal with children in Ireland. In summary, inquires come in two forms and are useful mechanisms for citizens to search for the truth regarding grievances caused by the state. They do not operate in the same manner as a court and are focused on finding out the truth in matter of public interest which in turns installs greater public confidence in the state.
Inquires Strengths and Weaknesses

A key strength of inquires is that they hold the government to account for their actions in an impartial and public manner. it was held that a private inquiry ordered by the secretary of state for health must be held in public. The reasons cited were restoration of public confidence and that there were advantages from taking the evidence in public. Firstly, witnesses were less likely to exaggerate or try to pass on responsibility in a public arena. Secondly, other witnesses were more likely to come forward as it was publicised. Finally, the openness of a public inquiry helps to restore confidence. Therefore, the public nature of inquires is important as it contributes to public confidence and draws more witnesses into its fairer environment. The inquisitorial nature of inquires were the witnesses are called by the inquiry leads to an in depth and detailed investigation. This differs from courts were witnesses are generally called from opposing sides of the court. Another strong attribute of inquires is that it upholds the key constitutional doctrine of the rule of law. The findings of the reports give recommendations that remind governments of their duty to act within the rule of law. With that said, an improperly conducted inquiry can create further suspicion as the result are susceptible to been considered a ‘whitewash’ to the party that is claiming to be a victim. This was the case in the Widgery tribunal. The critical errors made in this inquiry led to the establishment of the Bloody Sunday Inquiry. Another key weakness attributed to Inquires is the financial cost and the time it takes for an inquiry to be concluded. The Bloody Sunday Inquiry was established in 1998. However the Saville report was not published until 2010. Over 12 years later at cost of approximately 190 million pounds. This leads to valid questions regarding the efficiency of inquires.

In conclusion, both judicial review and inquires are important and valuable mechanisms used by citizens to pressure test and challenge the government. These mechanisms ensure that the establishment is held to account for their actions and omissions. This essay discussed how judicial review and inquires connect with key constitutional doctrines and constrain government use of arbitrary powers and maladministration. It also highlighted how judicial review remains out of reach for many citizens who fall outside its narrow legal aid scope. With access to justice being fundamental element of the rule of law it is imperative that the issue surrounding legal aid is addressed. Inquires and the important role they continue to play in society was also discussed. Public confidence in the government is critical to a stable society. Inquires help sooth suspicions and reinstall confidence surrounding administrative action that is of public concern. This was the case in the aftermath of Bloody Sunday and the subsequent weaknesses. With that said, this inquiry raised concerns that illustrate weaknesses in the inquiry mechanism with the cost and timescale being a major concern for some.

Ciaran Boyle

Derry

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