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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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