Judicial review is a narrow remedy, which enables you to challenge only the legality of a decision, not its merits. However, even the standard grounds for judicial review are quite effective in corralling decision-making. Furthermore, the courts have said they will expand its scope if required by the underlying law, or to ensure an effective remedy to vindicate legal rights.
As Shakespeare might have said, “To appeal, or review - that is the question…”
However, we’re often not given the choice - the legislature specifies judicial review, or doesn’t specify an appeal, so we’re left with the ‘default’ remedy of judicial review.
The courts have dealt, in a number of cases, with claims that judicial review was either:
- inadequate to ensure effective vindication of legal rights; or
- plainly not the type of remedy specifically required by law in a particular context.
The essence of the claim is the same: something wider than judicial review, and more like a full appeal, must be required.
Where successful, these claims have led to glosses on standard judicial review, which will be of interest both to decision-makers, and to those at the receiving end of decision-making.
How narrow are the grounds?
First, while judicial review prevents the court from ‘re-making’ an impugned decision, it nevertheless ensures that the decision-making process, the decision itself, and the decision-maker were all ‘in their correct boxes’.
As the courts have pointed out, it is worthwhile recalling that judicial review is wide enough to encompass, for example, a review of whether all proper matters, and no improper matters, were taken into account. Therefore, while not ‘second-guessing’ the actual judgment made by a decision-maker, the courts can, amongst other things, ensure that the materials-matrix was the proper one. This, of course, is in addition to the courts being able to review whether, having regard to that matrix, the decision was:
- reasonable; and
and, moreover, taken:
- for a permitted purpose;
- in a procedurally correct and fair way; and
- by a person with lawful authority to do so.
Therefore, while people will always prefer to have another full opportunity to argue the merits, it is worthwhile recalling that even ‘standard’ judicial review will correct decisions suffering from a reasonably wide variety of defects.
Moulding the standard to fit the requirement
Secondly, if judicial review is the only remedy available - whether by default or prescription - the courts have held that, in appropriate cases, they will flexibly mould the otherwise narrow standard if this is necessary to ensure:
- effective vindication of legal rights; and
- accommodation of any requirement, for example in an underlying EU Directive, that a broader standard be applied in a particular context.
Broadening judicial review where constitutional rights, etc. affected
Hence, the courts have confirmed that, for example, where human or fundamental rights guaranteed by the European Convention or the Constitution are encroached upon by a decision, the proportionality of the decision can be revisited by the court on judicial review. A disproportionate decision can, in those cases, be found by the court to be irrational or unreasonable in the judicial review sense. The courts have also stated that proportionality is only one possible criterion that the courts might apply in future cases to ensure that the lawfulness of a decision is appropriately and effectively reviewed. For an example, see Meadows v Minster for Justice, and subsequent cases.
In that regard, it has been held - in Efe v Minister for Justice - that
“…the Constitution require[s] the State to vindicate constitutional rights. This of necessity requires the State to provide a mechanism where such rights are adequately vindicated by means of an adequate remedy and, where appropriate, the courts will take on the task of fashioning such a remedy...”
Broadening judicial review in other cases
EU law requirements
In the context of another driver - EU Law - the courts have considered that the standard of review in judicial review proceedings is flexible enough to accommodate whatever requirements that body of law may truly impose. These include any requirement that Ireland, as a Member State, provide an equivalent and effective remedy conforming to particular specifications, which may, for example, be set out in an underlying Directive. If those specifications require a remedy that is broader than judicial review, and judicial review is the only available remedy in Ireland, then the courts will strive to stretch the judicial review standard to conform to the type of review or appeal required.
Correcting errors of fact
Finally, errors of fact have traditionally been considered to be within the unreviewable competence of a body to make. However, the courts have also recently held that if the errors of fact are material and fundamental, and if they lead to a failure by a decision-maker to exercise a function on a proper basis at all, such errors can be reviewed. For example, in AMT v Refugee Appeals Tribunal (“RAT”)and HR v RAT, the RAT was to assess credibility of persons against evidence as previously given by them. However, in both cases, the RAT had done this assessment against an incorrect version of the persons’ evidence, and thus had not exercised its functions properly at all.
- Traditional judicial review – while narrow – is in itself an effective remedy, when its full complement of grounds is recalled.
- In appropriate cases, the traditional standard will be adapted flexibly, and sometimes significantly, to apply a broader standard.
- These cases include:
- where constitutional or human rights are engaged and encroached upon;
- where EU Law requires it; or
- where a fundamental mistake of fact leads to a failure properly to exercise a function at all.
The amenability of any particular decision to judicial review will therefore always have to be assessed against the above, and in particular, the possibility that in an appropriate case, it may be subjected to review on a significantly broader basis than might otherwise have been thought.