Preface

It has been six years since the first edition of this book was published in 2008. During that time, the principle and practice of judicial review in Northern Ireland has con­tinued to change at great pace, whether as a result of new legislation and/or the deci­sions of courts at the national and the European levels.

In collating these and other developments, this new edition again focuses very much on the leading case law of the courts in Northern Ireland. Although that case law is often at one with case law elsewhere in the UK—there is of course also the overarching influence of EU law and the ECHR—Northern Ireland still has its own body of binding judicial precedents as well as a discrete procedural regime for judicial review (found in, primarily, the Judicature [Northern Ireland] Act 1978 and, what are now known as, the Rules of the Court of Judicature [NI] 1980). By �front-loading’ the Northern Ireland case law, this new edition, as with the previous edition, therefore hopes to distil the main Northern Ireland authorities and to situate them within their wider UK and European setting.

The structure of the book is largely unchanged, and eight chapters range across issues of the constitutional basis of judicial review, the judicial review procedure, the grounds for judicial review, and remedies. Chapter one—�Judicial Review in Northern Ireland: Purposes, Sources of Law, and Constitutional Context’—provides a background account of the nature of judicial review in the United Kingdom more generally and in Northern Ireland in particular. Starting with an analysis of the purposes served by judicial review, it identifies the various sources of law that are used in review proceed­ings, as well as the different judicial techniques that determine how far the sources of law can have an impact on the outcome of cases. The chapter also notes the role that �common law constitutional statutes’ can play in judicial review, where specific attention is given to the European Communities Act 1972 (as read with the European Union Act 2011), the Human Rights Act 1998, and the Northern Ireland Act 1998. These statutes are key to many judicial review cases in Northern Ireland, and there have been several important Supreme Court rulings about them in recent years.^[1] Chapter one thus outlines the key features of those Acts as well as some of their limitations in the light of Supreme Court jurisprudence.

Chapter two—�When Is the Judicial Procedure Used? The Public/Private Divide and Effective Alternative Remedies’—considers complicated questions about the reach of judicial review and the relationship between judicial review and alternative remedies (which are usually, though not exclusively, found in statute). This is the first part of the book that highlights some truly unique aspects of Northern Ireland case law, as the courts have for many years used a �public interest’ test when mapping the boundaries of judicial review.

Chapter three is titled, �The Judicial Review Procedure’. Given that the legislative basis for the procedure is contained in the Judicature (Northern Ireland) Act 1978 and Order 53 of the Rules of the Court of Judicature (NI) 1980, this is inevitably an area in which there are some significant differences between the law in Northern Ireland and elsewhere in the United Kingdom (eg at the level of nomenclature and in terms of the remedies that are available). However, the Northern Ireland procedure does, at the same time, share much in common with that in England and Wales (leave/permission; delay; standing; etc), and the chapter considers some important points of principle that have been established in Northern Ireland case law but which have had wider implications for the practice of judicial review (the leading example is Tweed v Parades Commission for Northern Ireland,^{[2] [3] which considered the law on discovery in review proceedings). Attention in the chapter is also given to recent developments in relation to, among other things, criminal causes and matters, protective costs orders, and third party interventions.}

Chapter four is �The Grounds for Review Introduced’.

Chapter five provides an analysis of �Illegality’ as a ground for review. It begins by returning to the theme of �constitutional statutes’ and considers the obligations that follow from the European Communities Act 1972 (as read with the European Union Act 2011), the Human Rights Act 1998, and the Northern Ireland Act 1998. The analysis here focuses not just on what the Acts entail for �public authorities’ (the term is used in the Human Rights Act 1998 and the Northern Ireland Act 1998), but also on the implications that they have for primary legislation enacted at Westminster and in the Northern Ireland Assembly. This, in turn, raises interesting constitutional ques­tions about the status of Acts of the Assembly, and the chapter gives close consideration to the Supreme Court’s important ruling in Axa General Insurance v Lord Advocated The chapter thereafter analyses the requirements of legality that govern subordinate legislation within its more conventional meaning; and it finally considers challenges to exercises of administrative discretion, whether brought on the basis of the �constitu­tional statutes’ or with reference to the common law headings of �relevancy’, �purposes’, �bad faith’, �(non)-delegation’, and �(non)-fettering of discretion’.

The sixth chapter is titled �Substantive Review: Wednesbury, Proportionality, Legiti­mate Expectation, Equality’. In many respects, this is the ground for review that has seen most development in recent years, as the Wednesbury principle has increasingly been supplanted by more intrusive grounds for review. This has resulted in difficult questions about the separation of powers doctrine both as relates to the review of administrative decisions and the legislative choices of the Northern Ireland Assembly and, in the context of the European Communities Act 1972 and Human Rights 1998, of the Westminster Parliament. At its source, this is a consequence of judicial accept­ance of the proportionality principle, as that principle, which applies in cases under the Acts of 1972 and 1998, can require the courts to assess whether decisions and legislative measures have struck an appropriate balance between matters of public interest and the rights of individuals. However, it is also true that the courts in Northern Ireland have historically tended not to engage in such �closer look’ review (the point taking form around the Wednesbury principle), and the emergence of proportionality has required the courts to reassess how best to exhibit self-restraint in cases under the Acts of 1972 and 1998. The chapter therefore explains how proportionality review is often linked to a �discretionary area of judgment’ doctrine which is informed by separa­tion of powers considerations that have an added prominence when challenges are made to legislative choices. It also chronicles how development of the doctrine of substantive legitimate expectation initially suggested high levels of judicial activism, before Court of Appeal authority asserted that the doctrine should be narrowly construed.^{[4] [5]}

�Procedural Impropriety’ as a ground for review is examined in chapter seven, which surveys the importance of procedural requirements in statute, the common law rules of fairness (the �right to a hearing’ and �the rule against bias’), and Article 6 ECHR (brief mention is also made of the Charter of Fundamental Rights of the European Union).

The eighth chapter addresses �Remedies’. The starting point here, as with that in chapter three, is the Northern Ireland legislation that governs judicial review and its remedies, which have long been regarded as discretionary in the domestic law context. However, the chapter also analyses EU law’s remedies regime and that of the Human Rights Act 1998, which are underwritten by requirements of the effective protection of the individual. In relation to remedies in EU law cases, the chapter notes the very sig­nificant ruling of the Supreme Court in Walton v The Scottish Ministers,^[8] which established that the courts have a discretion to withhold public law remedies even in some EU law cases. In a different vein, the chapter discusses how the Human Rights Act 1998 centres upon the doctrine of legislative supremacy, and how this entails that some of its remedies—specifically the declaration of incompatibility—have no formal legal effect. The chapter also surveys the existing case law on damages under the Act, which has pointed towards a narrow approach that is at one with much of the more general domestic law approach to damages actions against public authorities.

One last point that should be made by way of introduction to this edition concerns the relevance of academic debates about developments in judicial review in Northern Ireland (and the UK more generally). Although the chapters incorporate references to some academic literature, this edition, as with the previous edition, does not engage with broader debates about the nature and role of judicial review. At one level, this merely reflects the fact that the book has been written partly for legal practitioners, for whom broader debates may be of interest but perhaps of less immediate practical importance. However, given this approach, it should be emphasised that the doctrinal analysis in this book can inevitably tell only one part of the story of judicial review in

Northern Ireland, where there are many wider and important themes about democracy, transition and human rights. Those with an interest in such themes should consult the extensive body of literature that critiques many of the legal developments analysed in this book.⁹

Finally, the law is stated as of 30 November 2013.

⁹ Some of the leading literature on Northern Ireland includes: J Morison, â€?“A Sort of Farewell”: Sover­eignty, Transition and Devolution in the UK' in R Rawlings, P Leyland and A Young (eds), Sovereignty and the Law (Oxford, Oxford University Press, 2013) ch 8; C McCrudden and B O'Leary, Courts and Consocia­tions: Human Rights versus Power-sharing (Oxford, Oxford University Press, 2013); C Harvey and S Spencer, â€?Advancing Human Rights and Equality: Assessing the Role of Commissions in the UK and Ireland' (2012) 35 Fordham International Law Journal 1615; A Schwartz, â€?Symbolic Equality: Law and National Symbols in Northern Ireland' (2012) 19 International Journal on Minority and Group Rights 339; M Requa, â€?Keeping up with Strasbourg: Article 2 Obligations and Northern Ireland's Pending Inquests' (2012) PL 610; G Anthony, â€?The Devolution of Policing and Criminal Justice' (2011) 17 EPL 197; B Dickson, The European Convention on Human Rights and the Conflict in Northern Ireland (Oxford, Oxford University Press, 2010); G Anthony, â€?Judicial Review in Northern Ireland—A Guide to the “Real” Devolution Issues' (2009) 14 JR 230; M Requa and G Anthony, â€?Coroners, Controversial Deaths, and Northern Ireland's Past Conflict' (2008) PL 443; M Requa, â€?Truth, Transition, and the Inquiries Act 2005' (2007) EHRLR 404; J Morison, K McEvoy, and G Anthony (eds), Judges, Transition and Human Rights: Essays in Memory of Stephen Livingstone (Oxford, Oxford University Press, 2007); C McCrudden, â€?Northern Ireland and the British Constitution since the Belfast Agreement' in J Jowell and D Oliver (eds), The Changing Constitution, 5th edn (Oxford, Oxford University Press, 2007) p 227; M Cox, A Guelke and F Stephen (eds) A Farewell to Arms? Beyond the Good Friday Agreement, 2nd edn (Manchester, Manchester University Press, 2006); B Dickson, â€?The Northern Ireland Conflict and the House of Lords—A Sequel' (2006) 69 MLR 383; G Anthony, â€?Human Rights in Northern Ireland after In Re McKerf (2005) 11 EPL 5; G Anthony and J Morison, â€?Here, There, and (Maybe) Here Again: The Story of Law-making for Post-1998 Northern Ireland' in R Hazell and R Rawlings (eds), Devolution Law Making and the Constitution (Exeter, Imprint-Academic, 2005) p 155; K McEvoy and J Morison, â€?Beyond the â€?Constitutional Moment': Law, Transition, and Peacemaking in Northern Ireland' (2003) 26 Fordham International Law Journal 961; B Hadfield, â€?Does the Devolved Northern Ireland Need an Independent Judicial Arbiter?' in N Bamforth and P Leyland (eds), Public Law in a Multi-Layered Con­stitution (Oxford, Hart Publishing, 2003), p 133; C Campbell, F Ni Aolain, and C Harvey, â€?The Frontiers of Legal Analysis: Reframing the Transition in Northern Ireland' (2003) 66 MLR 317; A Smith, â€?Access to Intervene: The Northern Ireland Human Rights Commission and the Northern Ireland Act 1998' (2003) EHRLR 423; M Lynch, â€?Robinson v Secretary of State for Northern Ireland: Interpreting Constitutional Legislation' (2003) PL 640; F Ni Aolain, â€?Truth Telling, Accountability and the Right to Life in Northern Ireland' (2002) 5 EHRLR 572; G Anthony, â€?Public Law Litigation and the Belfast Agreement' (2002) 8 EPL 401; J Morison, â€?Democracy, Governance and Governmentality: Civic Public Space and Constitutional Renewal in Northern Ireland' (2001) 21 OJLS 287; C Harvey (ed), Human Rights, Equality and Democratic Renewal in Northern Ireland (Oxford, Hart Publishing, 2001); C Harvey, â€?The Politics of Rights and Delib­erative Democracy: The Process of Drafting a Northern Irish Bill of Rights' (2001) EHRLR 48; R Wilford (ed), Aspects of the Belfast Agreement (Oxford, Oxford University Press, 2001); S Livingstone, â€?The Northern Ireland Human Rights Commission' (1999) 22 Fordham International Law Journal 1465; S Livingstone and C Harvey, â€?Human Rights and the Northern Ireland Peace Process' (1999) EHRLR 162; J Morison and S Livingstone, Reshaping Public Power: Northern Ireland and the British Constitutional Crisis (London, Sweet & Maxwell, 1995); S Livingstone, â€?The Northern Ireland Conflict and the House of Lords' (1994) 57 MLR 333; and B Hadfield, The Constitution of Northern Ireland (Belfast, SLS Legal Publications, 1989).