DECIDING TO PROCEED
[3.04] There are three interlinked issues that should be considered in advance of deciding to proceed by way of application for judicial review (in addition to obvious practical matters of cost).
These are (a) whether there is a decision, act, failure to act, or other measure that (b) sounds in public law and which (c) may appropriately be challenged by way of judicial review (that is, is there an alternative remedy?; would judicial review proceedings be premature?; and so on).Is there a Decision, Act, Failure to Act, or Other Measure?
[3.05] There is a wide range of measures that may be challenged by way of judicial review. The target of a challenge will, however, often be a decision contained in a decision letter that has been addressed to the potential applicant (the rule of law requires notice of a decision before it can have legal effect; the requirement has added force when existing rights/interests are affected[331]). A decision, in turn, may identify a number of outcomes and/or proposed courses of action that will point to the remedies that may appropriately be sought in any subsequent application for judicial review. For instance, a decision may: affect the interests of the individual by refusing him or her a licence for a particular activity[332] or by refusing to renew an existing licence;[333] state that the decision-maker will act in a particular way in the light of the individual’s inquiry/ request;[334] or state that the decision-maker is not going to take any course of action beyond issuing the decision letter in question (which decision may project a future failure to act).[335] Under such circumstances, there will often be a core remedy that will be sought by the individual, with the appropriateness of other remedies depending on the fuller context of the dispute.
Hence where a decision affects existing interests—for example, the refusal to renew a licence—the core remedy is likely to be an order of certiorari, as this will have the effect of quashing the decision and requiring it to be retaken. However, where a decision-maker proposes to act in a particular way that the individual considers would be unlawful, an order of prohibition or an injunction may be sought, as these will prevent the proposed course of action. An order of mandamus may in turn be appropriate where a decision is to the effect that no further act will be performed, as this remedy will compel the decision-maker to perform its public duty. Mandamus may also be appropriate where there is an unreasonable delay in a decisionÂmaker’s reply to a formal request13 (on the remedies see [3.74]-[3.91]14).[3.06] It is not, however, always necessary for there to be a formal decision addressed to an individual for the purposes of judicial review, and there are many examples of challenges to other types of measures. While such challenges will often follow from some prior communication between the applicant and respondent (which may result in a decision that a subsequent challenge goes â€?behind’), others may not be preceded by communication and the courts must decide whether a matter is one that should be heard and the grievance of the individual remedied. Some of the measures challenged thus include: statements;15 policies;16 a school’s entrance criteria;17 regulations;18 non exercises of the royal prerogative;19 failures to act;20 preliminary decisions;21 a council vote to defeat a motion;22 the validity of appointments to a Commission established by statute;23 bye-laws;24 schemes;25 circulars;26 resolutions;27
13 See, eg, R v Secretary of State for the Home Department, ex p Phansopkar [1976] QB 606 (order of mandamus granted given the Home Office’s unreasonable delay in processing the individuals’ immigration applications).
14 And ch 8.
15Eg, Re Williamson’s Application [2000] NI 281 (challenge to Secretary of State’s statement and related decision to the effect that the IRA was maintaining a ceasefire for the purposes of the Northern Ireland (Sentences) Act 1998: application dismissed).
16Eg, Re Byers Application [2004] NIQB 23 (applicant challenging a prison policy that prevented RepubÂlican prisoners from, inter alia, wearing Easter Lilies: application dismissed).
17Re Anderson’s Application [2001] NI 454 (students who obtained �A’ grades in their 11-plus examination but who were refused entry to the school of their choice challenged the school’s corresponding sub-criteria: application dismissed).
18Re Kelly’s Application [2000] NI 103 (challenge to the lawfulness of Law Society Regulations that govern/limit access to a professional legal studies course: application dismissed).
19Re Hannaway’s Application [1995] NI 159 (Secretary of State for Northern Ireland refused to exercise the prerogative of mercy to allow the remains of an IRA man who had been executed and buried within Crumlin Road prison to be removed and commemorated by the Republican Movement: application granted).
20Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety [2005] NI 188 (challenge to the department’s failure to issue guidelines and advice on the law of abortion in Northern Ireland: application granted on appeal). See further Re Society for the Protection of the Unborn Child’s Application [2009] NIQB 92 and Re Family Planning Association of Northern Ireland [2013] NIQB 1.
21MacManus & Ors v Northern Ireland Housing Executive, 3 July 1997, unreported (challenge to a finding in respect of the applicant’s �preliminary inquiry’ regarding eligibility for a housing grant, which finding did not have legal force and did not preclude a further and full application for a grant: one of the applications granted).
22Re O’Neill’s Application [1995] NI 274 (challenge to the lawfulness of a vote in Cookstown District Council in respect of a motion to promote the Sunday opening of recreational facilities: application granted).
23Re White’s Application [2000] NI 432 (applicant challenging the composition of the Parades CommisÂsion—which had no women members—as contrary to the requirement in para 2(3) of Sch 1 to the Public Processions (Northern Ireland) Act 1998 that the Commission be representative of the community in Northern Ireland: application dismissed); and Re Duffy [2008] UKHL 4, [2008] NI 152 (applicant challenging appointment to the Parade’s Commission of two members of the loyal orders: application granted on appeal).
24Belfast Corporation v Daly [1963] NI 78 (collateral challenge to the lawfulness of a bye-law in a criminal prosecution: challenge failed before the Court of Appeal in proceedings by way of case stated).
25Re Benson’s Application [2005] NIQB 39 (challenge to a Voluntary Severance Scheme developed by the Police Service of Northern Ireland and Northern Ireland Office: application dismissed).
26Re Conlon’s Application [2005] NI 97 (challenge to a Departmental Circular dealing with release of persons convicted of certain offences against children: application granted).
27 Re Cook’s Application [1986] NI 242 (challenge to a majority resolution of Belfast City Council to the operational choices of the police;28 and the findings of lower courts.29
[3.07] Judicial review can also be used to challenge various forms of subordinate legislation (primary legislation—most obviously Acts of the Westminster Parliament30— cannot be challenged save where it conflicts with EU law31 and/or to the limited extent associated with declarations of incompatibility under section 4 of the Human Rights Act 199832). For instance, subordinate legislation made under Acts of the Westminster Parliament can be challenged as ultra vires its parent Act or as otherwise unlawful;33 and Statutory Rules made under Acts of the Northern Ireland Assembly or its predecesÂsors can likewise be reviewed.34 Moreover, those same Acts of the Assembly (or Orders in Council made when the local institutions have been suspended35) can be challenged as ultra vires the Northern Ireland Act 1998 that devolves power to the Assembly.
Although there is debate about how far, or whether, Acts of the Assembly/Orders in Council can be regarded as subordinate legislation,36 it remains the position that such legislation can be made only within the terms of section 6 of the Northern Ireland Act 1998.37 Where the lawfulness of an Act of the Assembly is raised in proceedings, this suspend forthcoming meetings of the council and to delegate its functions to the town clerk in protest at the signing of the Anglo-Irish Agreement of 1985: application granted).28Re E (A Child) [2008] UKHL 66, [2009] 1 AC 536 (challenge to the mode of policing of the �Holy Cross' dispute: application dismissed).
29 Eg, Re Belfast City Council’s Application [2008] NIQB 13, [2008] NI 277 (challenge to a Resident Magistrate's decision to impose a fine of £100 for a breach of safety regulation: application granted).
30 But see too the wider definition in Human Rights Act 1998, s 21.
31 R v Secretary of State for Transport, ex p Factortame Ltd (No 2) [1991] 1 AC 603; and [1.16], [4.09], and [5.06]-[5.07].
32 On s 4 see [8.47]-[8.49]; and Re McRs Application [2003] NI 1 (Offences Against the Persons Act 1861, s 62 incompatible with Art 8 ECHR). For an unsuccessful human rights challenge to legislation see Re Sinn Fein’s Application [2004] NICA 4 (s 12 of the Political Parties, Elections and Referendums Act 2000 not incompatible with Art 10(1) ECHR and Art 3 of Prot 1, ECHR, as read with Art 14 ECHR).
33 See, eg, Re Christian Institute and Ors Application [2007] NIQB 66, [2008] NI 86 (challenge to the lawfulness of the Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006, SR 2006/439, that had been made under s 82 of the Equality Act 2006: application granted in part for lack of adequate consultaÂtion); and [5.34]-[5.35].
34 See, eg, Re Cullen’s Application [2005] NIQB 9 (challenging, inter alia, the Game Preservation (Special Protection for Irish Hares) Order (Northern Ireland) 2003 made under s 7C(1) of the Game Preservation Act (Northern Ireland) 1928 Act: application dismissed).
35 Most recently under the Northern Ireland Act 2000, s 1 and Sch 10, since repealed by the Northern Ireland (St Andrews Agreement) Act 2006 and Northern Ireland (St Andrews Agreement) Act 2007.
36 See [5.25]-[5.26]; and Axa General Insurance v Lord Advocate [2011] UKSC 46, [2012] 1 AC 868.
37 Section 6 reads: (1) A provision of an Act is not law if it is outside the legislative competence of the Assembly. (2) A provision is outside that competence if any of the following paragraphs apply: (a) it would form part of the law of a country or territory other than Northern Ireland, or confer or remove functions exercisable otherwise than in or as regards Northern Ireland; (b) it deals with an excepted matter and is not ancillary to other provisions (whether in the Act or previously enacted) dealing with reserved or transferred matters; (c) it is incompatible with any of the Convention rights; (d) it is incompatible with EU law; (e) it discriminates against any person or class of person on the ground of religious belief or political opinion; (f) it modifies an enactment in breach of section 7'. Convention rights for the purposes of the section are to be read in the light of the Human Rights Act 1998 (s 98); and s 7 lists entrenched enactments that, subject to s 7(2), may not be modified by Act of the Assembly or subordinate legislation (these are the European Communities Act 1972, the Human Rights Act 1998, ss 43(1)-(6) and (8), s 67, ss 84-86B, s 95(3) and (4), s 98 of the Northern Ireland Act 1998, and ss 1 and 84 of the Justice (Northern Ireland) Act 2002 (s 7(2) permits modification of s 3(3) or (4) or s 11(1) of the European Communities Act 1972)). For an example of a challenge to Northern Ireland legislation—here in the form of an Order in Council—see Re Northern Ireland Human Rights ComÂmission’s Application [2012] NIQB 77 and [2013] NICA 37 (arts 14 and 15 of the Adoption [NI] Order 1987 challenged as contrary to Arts 8 and 14 ECHR for the reason that they prevent unmarried couples and those in civil partnerships from adopting children: application granted). See too the earlier HL ruling in Re P [2008] UKHL 38, [2009] 1 AC 173.
thus gives rise to a â€?devolution issue’ that must be resolved in accordance with addiÂtional procedural requirements[336] (similar requirements apply when a challenge to Statutory Rules gives rise to a â€?devolution issue’[337]). Those requirements are outlined at [3.24].
[3.08] It is also possible to challenge the lawfulness of EU Regulations and Directives in the High Court by bringing review proceedings against the government department that is responsible for giving domestic effect to the measures. A challenge here will argue that a Regulation or Directive is contrary to the TFEU and/or the general prinÂciples of EU law,[338] and, if the court thinks that the measure might be unlawful, the domestic court must make an Article 267 TFEU reference to the CJEU as the court responsible for determining â€?the validity and interpretation of acts of the [EU] instituÂtions’.[339] Such challenges in the national courts will, moreover, be likely to give rise to the question whether an injunction should issue to prevent the implementation and operation of the EU measure or domestic measure that gives effect to it and, if so, which standard—domestic or EU— should govern the granting of relief.[340] The relevant domestic and EU law on injunctions under such circumstances is considered at [3.45]-[3.48].
Does the Decision or Other Measure Sound in Public Law?
[3.09] Judicial review is concerned with â€?public law issues and not private disputes involving no element of public law’,[341] and an application for leave should therefore not be made if the matter in question is one of private law. While it will often be clear that a matter falls within the realm of public law and is amenable to judicial review, difficult questions about the public/private divide still remain and the courts have fashioned a variety of tests—examined in detail in chapter two—that seek to map the boundaries of public law. The most important of these is the â€?public interest’ test, which holds that â€?an issue is one of public law where it involves a matter of public interest in the sense that it has an impact on the public generally and not merely on an individual or group’.[342] Related tests include the â€?source of power’ test[343], and the â€?public functions’ and the â€?emanation of the State’ tests;[344] and further guidance on the reach of public law—or certainly on public authorities whose decisions may sound in public law—can be found in case law under section 6 of the Human Rights Act 1998 and in the lists of public authorities used by the Northern Ireland Act 1998 and the Freedom of InformaÂtion Act 2000.[345]
Would Review Proceedings be Appropriate (in light of alternative remedies, prematurity, and so on)?
[3.10] Even where a dispute can be characterised as one of â€?public law’, judicial review proceedings may be inappropriate where the individual has an alternative remedy (for instance, a statutory right of appeal). The requirement that individuals avail themselves of such remedies first—while not absolute and subject to considerations of effectiveness and efficiency[346]—reflects the constitutional assumption that remedies regimes estabÂlished by the legislature should ordinarily be given priority by the courts. There are, however, practical justifications for the requirement too, and the courts have emphasised that appeals or tribunal hearings (for example) may be more suited to the nature of dispute at hand, both in terms of procedures and the remedies that are available. AppliÂcations for judicial review may therefore be dismissed where such alternative means of redress have not been exhausted.[347]
[3.11] Judicial review proceedings may also be inappropriate if deemed â€?premature’, or where the issue at hand is not considered â€?ripe for review’.[348] These concepts correÂspond to the argument that governmental and administrative decision-making processes should not be unduly constrained by the prospect of review proceedings, particularly where the decision-making process has not reached its conclusion in the sense of a final decision being taken and relayed to an individual.[349] While a decision that affects the interests of an individual will therefore typically be open to review (subject to requireÂments of delay, standing, and so on), the position may be different where no formal decision has yet been made or where an individual wishes to challenge a preliminary determination in the overall decision-making process.[350] Under those circumstances, courts may prefer for the legal issue to mature and to be challenged as a formal decision that has legal effect.[351]
[3.12] Case law in Northern Ireland does, however, also point to some competing considerations that may permit of challenges at an earlier stage in the decision-making process. The courts have, for instance, recognised that challenges to recommendations and preliminary decisions are in theory possible where those measures are an integral part of an overall process that will affect the individual’s legal interests or rights.[352] The courts have, moreover, noted the value of pragmatism in the administrative decisionÂmaking process and have allowed challenges to preliminary determinations where those determinations are part of a wider scheme that seeks to save time and expense on the part of both the individual and the decision-maker. For example, in MacManus v Northern Ireland Housing Executive[353] the applicant had used the respondent’s â€?prelimiÂnary inquiry’ system whereby the authority gave an indication whether an individual would be eligible for a renovation grant for their residence. The outcomes of such inquiries had no statutory effect and did not prevent the individual from making a formal application for a grant, although the result of any formal application usually mirrored that of the preliminary inquiry. In allowing the applicant to challenge the finding of the preliminary inquiry, the court observed that the scheme in place was â€?pragmatic and sensible’ as it enabled the individual to avoid the expenditure of a further application for a grant (which would require an additional decision on the part of the authority).[354] Seen from this perspective, judicial review of the preliminary finding therefore complemented the pragmatic nature of the decision-making process, notwithÂstanding that the finding in question lacked formal legal force.
[3.13] One further point about preliminary decisions concerns the question of when time-limits run for the purposes of review proceedings. Under RCJ Order 53, rule 4(1), applications for leave to apply for judicial review â€?shall be made promptly and in any event within three months from the date when the grounds for the application first arose unless the Court considers that there is good reason for extending the period within which the application shall be made’ (see [3.28]-[3.30]. In R (Burkett) v HamÂmersmith and Fulham LBC[355]—a planning dispute—the House of Lords had to consider whether time ran from the moment that there was a preliminary determination that was reviewable (in this instance a council resolution that authorised a grant of planning permission subject to conditions precedent) or whether it ran from the date that the final decision was made (the formal grant of permission on fulfilment of the conditions precedent). The application for leave/permission in this case had been made seven months after the date of the resolution (which was the target of the challenge) and one month before the final decision was made, and the respondent argued that the applicaÂtion thereby fell outside the corresponding time-limits in England and Wales.[356] Rejecting the argument, the House held that there were strong reasons of policy for holding that time ran from the date when planning permission had actually been granted rather than from the date of the resolution. These included the need for certainty and simplicity in terms of ascertaining dates for the purposes of proceedings and the need for indiÂviduals to be able to vindicate their rights and, where appropriate, the corresponding interests of the community. The House, on this basis, likewise rejected the argument that the proceedings could only relate to the resolution as the application had been made before the decision in question had in fact been taken. Such an argument, it was held, served only to elevate a procedural difficulty to a position of prominence when the emphasis in public law should be placed more on matters of substance than form.[357]