INTRODUCTION

[1.01] This chapter provides an overview of the purposes of judicial review in Northern Ireland and of the constitutional doctrines and juridical techniques that underpin its development.

The dynamic nature of judicial reviewвЂ”the number of applications conВtinues to grow and to bring forward new principles and practice^[9]вЂ”is largely a function of judicial elaboration of the common law and of canons of statutory interpretation. Use of the common law and interpretive techniques has, moreover, increasingly been influenced by the demands of European Union (EU) law and the European Convention on Human Rights (ECHR) (as read with the European Communities Act 1972 and the Human Rights Act 1998 respectively) and judicial review now performs an ever more important constitutional function. This chapter thus identifies how elaboration of the common law and interpretive techniques takes form in practice and how European law is adding to that evolutionary process. Links are also made between points in this chapter and more specific developments in judicial review, as analysed in subsequent chapters.

[1.02] The chapter begins with a section that defines judicial review and notes some of the purposes served by the corresponding procedure.^[10] It next divides into three sections: the first lists the principal sources of law (viz, statute law, the common law, EU law, the ECHR, and international law) and considers judicial attitudes to them; the second notes the importance of different methods of statutory interpretation; and the third discusses the significance of common law вЂ?constitutional statutesвЂ™ (which have gained some recognition in case law in England and Wales and which have had some impact in Northern Ireland). The conclusion offers a summary of the key points made.

[1.03] One further point by way of introduction concerns the fact that the developВment of the principle and practice of judicial review often occurs against a backdrop of differing/competing judicial perspectives on the constitutional role of the courts. Applications for judicial review frequently raise the question of how farвЂ”if at allвЂ” courts should scrutinise the substantive choices of public authorities that the legislature has entrusted with a decision-making power or duty.^[11] While developments in judicial review have resulted in new principles that clearly have increased the scope for judicial invigilation of decision-making processes and outcomes, judicial review remains wedded to an historical вЂ?review, not appealвЂ™ distinction that permits the courts to assess only the legality of decisions and not their merits^[12](see [1.05]).

This distinction is, in turn, founded upon the separation of powers doctrine which requires that courts should neither legislate in the place of the legislature nor interfere with the lawful discretionary choices of executive and administrative decision-makers (the legislature and subordinate decision-makers likewise should not interfere with the judicial role).^[13] The wider body of judicial review case law is, in consequence, sometimes characterised by divergences in judicial opinion about the limits to legitimate development of public law principle and practice and about the importance of the separation of powers doctrine (the corresponding debate is essentially about вЂ?judicial activismвЂ™ vs вЂ?judicial self-restraintвЂ™^[14]). The juridical techniques and so on considered in this chapter should therefore not be read as prescriptive and of uniform application, but rather as the (disputed) outer markers within which judicial review develops.

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Source: Anthony Gordon. Judicial Review in Northern Ireland. Hart Publishing,2014. вЂ” 374 p.. 2014

INTRODUCTION

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