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GAZKTTK
DECEMBER 1995
Judicial Review; A Thematic
Approach.
The development of judicial review
has been one of the pre-eminent
achievements of our times. Apart
from the election of the legislature,
judicial review is the citizen's legal
"weapon" in a modern democratic
state. The "supervision" of the
legislature and public bodies is the
core element of judicial review.
Judicial review has emerged as a
counterweight to the gFowth of
executive power.
Professor
Brigid Hadfield,
professor
of public law at Queen's University,
Belfast, has brought together in this
book contributions from various
scholars who examine judicial review,
from various perspectives, in the
jurisdictions of England and Wales,
Scotland, Northern Ireland and the
Republic of Ireland. Judicial review in
the context of the.environment,
education, local government, the
criminal process, prisons and national
security are the subjects of individual
chapters. Mr
Gerard Hogan,
barrister and Fellow of Trinity
College, Dublin, has contributed a
chapter on the law of judicial review
in this jurisdiction.
There is considerable similarity in the
law and procedure of judicial review
in the United Kingdom and Ireland
with some notable differences
particularly on the public/private
law divide.
Lord Woolf in his preface to the book
states that the majority of
administrative lawyers practising in
the High Court in London "are
abysmally unaware" of the decisions
on judicial review in the other
jurisdictions that have similar law and
procedure in relation to judicial
review of administrative actions. This
book will assist in remedying that
lacuna.
Judicial Review: A Thematic
Approach
is an authorative practice-
oriented text written by a
distinguished group of lawyers expert
in the field of judicial review.
Dr Eamonn G Hall
The Law of Termination of
Employment
by Robert Upex - Fourth Edition
Sweet & Maxwell p.p. 482 £75.00 stg
The first sentence of the preface of
Prof. Upex's latest edition explains
why to a very great extent, his
excellent work is of limited relevance
to Irish lawyers. He states "So great
have been the changes in Employment
Law since the previous edition of this
book that it is tempting for
commentators to resort to hyperbole in
describing them". While these changes
have arisen through many important
Court decisions in the UK and from
the European Court of Justice, Prof.
Upex goes on to refer to the legislative
changes in the UK. These legislative
changes have led to a significant
widening of the difference between
Irish and British employment law. The
legislature in the UK has shown
commendable attention to detail in
building proper structures and
frameworks for the operation of
primary legislation. This is notably
lacking in Ireland. While the primary
legislation has many similar features
the detail and operational framework
is so significantly different as to make
it very difficult to find parallels in
Irish law.
This is a very substantial work and is
both comprehensive and well written.
It is, however, as I have stated, of
limited appeal in Ireland. There is
some useful information to be found
here that is not readily available
elsewhere. An example is the question
of references for former employees
which is given a chapter to itself at the
end of the book. While it consists of
only four pages it is a useful summary
of current law and makes reference to
the House of Lords Decision in
Spring
v Guardian Assurance pic.
The
chapter opens with the statement that
an employer is not obliged to provide
a reference for an employee. In the
Spring case the majority of the Law
Lords stated that a term may be
implied into certain contracts of
employment that a reference will be
furnished. Prof. Upex refers to that
view at the end of the chapter. In not
linking the initial statement and the
later statement there is a danger the
reader will stop at the first sentence
and go no further.
The work is broken into four sections.
The first section consists of eight
chapters on statutory rights. Given the
statutory differences between the two
jurisdictions this chapter is of little
use except where it relates to the
transfer of an undertaking. The
information here is well presented but
great care must be taken to ensure that
general principles sought to be applied
in Ireland do not arise from the UK
Domestic Regulations but rather from
the EU Directive given the significant
differences between our Regulations
and the UK equivalent. Prof. Upex has
an eye for the practical issues relevant
to legislation and this allows him to
give neat summaries of what might
otherwise can be complicated law. His
piece on the transfer of undertakings
is a case in point. He manages to
accurately summarise the
Secretary of
State for Employment v Spence
and
Litster
v
Forth Drydock &
Engineering Company Limited
(In
Receivership) in the space of one and
a half pages. He does what all good
teachers should do which is to
highlight the area in which a problem
might arise and point the reader in the
direction of where the relevant law
will be found. He avoids any social or
political dimension to his approach or
comments. The chapter on redundancy
is only of use in Ireland in its
references to the definition of
redundancy itself quoting some useful
case law not easily found elsewhere.
The definition is different to the Irish
equivalent but has sufficient parallel
to make some of the precedent case
law of use to us. As with almost every
aspect of this book the practitioner
using it must be very familiar with the
equivalent Irish law in order to spot
sometimes very subtle differences.
Statutory definitions are dealt with in
excellent detail but again one has to
first understand the parallels with
Irish legislation before definitions can
be relied on. The definition of "the
date of dismissal" in chapter 5 is not
appropriate to Irish law whereas the
definition of "lock-out" is useful and
parallel case law such as
Tramp
Shipping Co-operation v Greenwich
361