Judicial review is a procedure in which the Courts provide remedies against the abuse of the executive power of the State and public bodies.
A person who feels that a decision of a public authority, such as a government minister, the District or Circuit Court, a semi-state body, the local council or a statutory tribunal has violated his or her rights, may apply to the High Court for judicial review of the decision.
In looking at the decision the courts are principally concerned about the manner in which the decision-making person or body has exercised the relevant power in making the decision rather than the merits of the decision itself. It is not an appeal process and the court does not substitute its opinion for that of the public authority.
The High Court is concerned with how the decision was made and the fairness of it rather than whether it was the correct decision to begin with. The court is predominately concerned with whether all relevant considerations were taken into account, whether there was any evidence of deceit, fraud or bad faith or whether the body make the decision had the legal capacity to do so.
In order to bring Judicial Review Proceedings an application is made to the High Court, without notice to the decision making body requesting the court for leave (permission) to challenge the relevant decision.
The application must set out the applicable issues and the applicant bears a high onus to disclose all relevant facts at this point. An application for leave must be made promptly and in any event within three months from the date when grounds for the application first arose or six months where the relief sought is certiorari unless the Court considers there is good reason for granting an extension. In relation to planning decisions this time period is reduced to eight weeks.
In the event that leave is granted, the proceedings are served on the relevant public body and they are given an opportunity to defend the matter. The case will be decided on the basis of written evidence and generally no oral evidence is submitted. The outcome of successful Judicial Review Proceedings is that the relevant decision is set aside.
Classic grounds for judicial review are:
- Breach of Natural and Constitutional Justice i.e. ‘the rule against bias’, and the requirement to ‘hear the other side’;
- Reasonableness i.e. Did the public authority abuse its jurisdiction? Does their decision offend against fundamental reason and common sense
- Legitimate Expectation i.e. of receiving a benefit or privilege which arises either from an express promise given on behalf of a public authority or the existence of a regular practice which an individual can reasonable expect to continue.
- Proportionality e.g. Are restrictions imposed by legislation in the context of constitutional rights disproportionate and therefore invalid?
If the application for judicial review is successful, there are a number of discretionary remedies:
- Certiorari i.e. the Court may set aside (quash) the unlawful act
- Prohibition i.e. the Court prohibits the public authority from acting unlawfully
- Mandamus i.e. the Court compels the public authority to perform a legal duty of a public nature
There are two stages in proceedings for judicial review; firstly leave to apply for judicial review (ex parte) and secondly, where leave is granted, the substantial application is heard.
Public decisions may be judicially reviewed by the High Court to determine whether they are unconstitutional or illegal.
Some examples of public decisions include:
- Decisions of tribunals including the Refugee Appeals Tribunal
- Disqualification from receiving social welfare payments
- Refusals of an Irish passport, marriage certificate or visa
- Decisions to deport asylum-seekers
- Decisions of the District and Circuit Courts
- Decisions of the Planning Authority