THE ORIGINS, AND DISCRETIONARY NATURE, OF THE REMEDIES
Origins
[8.03] The five principal remedies available under the Judicature (Northern Ireland) Act 1978 and RCJ Order 53 are an order of mandamus, an order of certiorari, an order of prohibition, a declaration, and an injunction[1732] (on these and the other remedies, including damages, see [8.10]-[8.32]).
Of these, the first three are known as the â€?preÂrogative’ orders (formerly writs), which term denotes the historical fact that they were issued by the Crown. The orders as such performed a centralising function in the State, as they enabled the Crown to exercise control both over courts and over local and non-royal decision-makers (the remedies in time became judicialised as individuals increasingly sought redress in the King’s Court rather than from the King himself).[1733] Declarations and injunctions, in contrast, have their origins in equity, and this historiÂcally entailed that they were more flexible than the common law prerogative orders. In other words, while the prerogative orders were to develop in the light of highly technical distinctions that could render it difficult for individuals to gain access to them,[1734] declaraÂtions and injunctions were originally unconstrained by strict rules of precedent and were defined more by equity’s emphasis on flexibility in the face of injustice.[1735] On the other hand, a judicial aversion towards solely declaratory relief meant that use of the declaration remained underdeveloped in public law cases, at least until the legislature intervened to encourage such relief.[1736][8.04] The Judicature (Northern Ireland) Act 1978 has consolidated all of the remedies within one procedure; that is, it provides that the same procedural requirements should be observed irrespective of the type and number of prerogative orders sought and irrespective of whether a declaration and/or injunction is also sought or is sought in the alternative.[1737] Case law under the Act has, in turn, coincided with a common law-led expansion of judicial review to include an increasingly wide range of decisions, whether sourced in statute,[1738] the royal prerogative,[1739] or other forms of non-statutory power[1740] (excluding most forms of contractual relationship[1741]).
That period of expansion has also been characterised by a related rejection of historical distinctions that structured the grounds for review around the differences between, most notably, judicial and adminÂistrative decision-makers.[1742] Each of the remedies in the Judicature (Northern Ireland)Act 1978 and RCJ Order 53, rules 1 and 7 is thus now potentially available in respect of any decision of a subordinate decision-maker[1743] that sounds in public law and in respect of which there is no effective alternative remedy.[1744]
The Position of the Crown and its Ministers
[8.05] Because the prerogative orders were historically issued by the Crown ([8.03]) it was axiomatic that they could not issue against the Crown, as that would have amounted to the constitutional incongruity of the Sovereign commanding itself to do something. However, while it remains the position that remedies cannot issue against the Queen in Her personal capacity (the Sovereign is not subject to legal process[1745]), it is well established that the prerogative orders and/or declarations and injunctions can be granted in respect of the decisions, acts, and failures to act of Ministers of the Crown.[1746] [1747] This is the result of the House of Lords seminal judgment in M v Home Office,11 which centred on the question whether interim and final injunctions could issue against MinÂisters of the Crown in judicial review proceedings notwithstanding that section 21 of the Crown Proceedings Act 1947 prohibits such relief in civil proceedings.[1748] Holding that section 21 did not apply to the instant case because judicial review proceedings are not â€?civil’, the House of Lords noted not just that injunctions were already available in proceedings under the European Communities Act 1972 and that it was desirable that they should be available in â€?domestic’ cases too[1749] (and see [8.36]); it also emphaÂsised that declarations and the prerogative orders can be granted against Ministers of the Crown and that injunctions should be also be available given that the legislative reform of the judicial review procedure had been intended to consolidate the remedies.
A Minister of the Crown acting in his or her official capacity may, in the result, be subject to any or all of the prerogative orders and/or declarations and injunctions. In contrast, where the remedy sought is damages for the commission of a tort, the Crown Proceedings Act 1947 provides that the Crown is here vicariously liable for the actions of its â€?officer’[1750] (on the principal torts see [8.22]-[8.30]).[8.06] There are two further points about the position of the Crown and its Ministers. The first is that there are some statutory provisions which require that the Crown be given notice of matters arising in proceedings. The most important of these for the purposes of remedies is section 5 of the Human Rights Act 1998, which provides that the Crown is entitled to notice in accordance with rules of court where a court is considering whether to make a declaration of incompatibility (see [8.47]-[8.49]). Where such notice is given, a Minister of the Crown (or a person nominated by him or her), a Northern Ireland Minister, and/or a Northern Ireland department is entitled, on giving notice in accordance with rules of court, to be joined as a party to the proceedÂings[1751] (the corresponding rules of court are found in RCJ Order 121). The Advocate General for Northern Ireland, the Attorney General for Northern Ireland and approÂpriate Northern Ireland Ministers and departments are likewise to be given notice where judicial review proceedings give rise to a â€?devolution issue’, which may include the question whether legislation enacted by the Northern Ireland Assembly is compatÂible with the ECHR.[1752]
[8.07] The second point concerns the position of Northern Ireland Ministers. Although Northern Ireland Ministers may, as respects transferred matters, exercise â€?the prerogaÂtive and other executive powers of Her Majesty in relation to Northern Ireland’,[1753] it would appear that they are not to be regarded as Ministers of the Crown.
This can be deduced both from the fact that various statutes use the term â€?Northern Ireland Minister’ as distinct from the term â€?Minister of the Crown’,[1754] and also from the manner in which Northern Ireland Ministers and Ministers of the Crown are appointed (that is, Northern Ireland Ministers are appointed with reference to the terms of the Northern Ireland Act 1998,[1755] while Ministers of the Crown are appointed by the Crown in accordÂance with constitutional convention[1756]). The point is, however, largely unremarkable in terms of remedies, as Northern Ireland Ministers and Ministers of the Crown may equally be subject to any of the prerogative orders and/or declarations and injunctions (see [8.05]).Their Discretionary Nature
[8.08] The prerogative orders and equitable remedies have always been discretionary in the sense that they did not, and still do not, issue automatically where an argument of illegality and so on was, or is, made out.[1757] The historical approach of the courts instead depended on the context to a given case and the motivation and actions of the individual, and these remain as guiding considerations in the modern case law[1758] (although different considerations may apply in cases under the European Communities Act 1972 and/or the Human Rights Act 1998: see [8.40] and [8.43]). For instance, the courts today may decline to grant a remedy where the applicant has not exhausted alternative remedies,[1759] where the illegality is a technical irregularity that has caused the applicant no substantial wrong or a miscarriage of justice,[1760] where the applicant has failed to bring proceedings within the requisite time-frame,[1761] where the nature of the applicant’s interest in the case is such that no remedy need issue,[1762] or where the appliÂcant has acted without candour and integrity.[1763] A remedy may, in â€?exceptional circumstances’,[1764] also be refused for reasons of utility, for example where there has been insufficient consultation but where the court is of the opinion that proper consultation would not have made a difference to the course of action that the applicants would have taken, and that they had thereby suffered no significant unfairness.[1765]
[8.09] The courts may also decline to grant a particular remedy in a given case because of the wider ramifications that the grant of the remedy might have.
The point here is that an application for judicial review may frequently seek more than one of the remedies but that the court may consider that the grant of one specific remedy would be constitutionally inappropriate in the circumstances. The point can perhaps best be seen in relation to an order of mandamus, as this remedy has the effect of compelling a decision-maker to perform a public—usually a statutory—duty (see [8.11]-[8.12]). Should the performance of that duty involve discretionary choices[1766] in respect of, for instance, resource allocation, the courts may consider that an order of mandamus should not issue as it may have the effect of dictating a resource choice in circumstances that could have implications for other parties not before the court (for instance, other NHS patients[1767] or other applicants for a licence for an economic activity[1768]). Rather than issue a remedy that would strain the logic of the separation of powers doctrine[1769] insofar as it would involve the court in making a choice better left to others, a court may thus prefer to make a declaration in respect of the rights and obligations of the parties[1770] (on declarations see [8.17]-[8.18]). A court may alternatively decline to grant any formal remedy for the reason that the judgment of the court itself has in effect declared the respective rights of the parties.[1771]