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GAZETTE
DECEMBER 1995
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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