This essay will discuss whether 'Judicial review of administrative action does little to protect the rights of the individual against the power of the state.'

most challenged failures by the Executive. In the case of Mrs Coughlan a disabled woman in a nursing home at Newcourt Hospital Devon, she was given an assurance she could stay in her nursing home as long as she wished to remain there and it was argued on her behalf that this gave rise to a legitimate expectation. In fact similar to that of the Loreto[12] case where there was also a legitimate expectation. It was held in the Coughlan case: That if a public body exercising a statutory function made a promise as to how it would behave in the future which induced a legitimate expectation of a benefit which was substantive, rather than merely procedural, to frustrate that expectation could be so unfair that it would amount to an abuse of power.[13] Here I believe is an example where a JR clearly has protected the rights of Ms Coughlan and she remains there to this day (checked 25th April 2016). When Mid and East Antrim Council allowed oil exploration in an area of special scientific interest, there was very real anger in the community, particularly because of a lack of consultation and the way the mater was being steamrolled through council. Consultation was key, and it didn’t take place, as it should have. After all legal avenues with the council failed, the only option was to initate a JR against the council. Again the question arises has a JR protected the rights of the public or will it provide a chance of stopping further drilling? This is clearly a dilemma; on one hand taking a JR gives the public power to question the rules used to make the decision but not necessarily to prevent the action from continuing. If this had been a Human Right breach then one might have considered Art 6 of the ECHR as it provides additional grounds for review, by giving a right to an independent and impartial tribunal. So whilst the JR has given an opportunity to question the legality of the way the decision was arrived at, it has not stopped the drilling yet, however the JR is due to take place on the 6th May 2016. Lord Justice Girvan explained in extremely clear terms following the Loretto School case, how he feels about the behaviour of Departments and the Executive.[14] In support of this, Simon Brown J. concluded in Angell[15] that a decision accompanied by inadequate reasons “cannot on that ground alone” be quashed, but that a quashing order could be issued if the absence of reasons permitted an error of law to be inferred.[16] This may mean there is duty to give reasons for a decision, but it is not sufficient a duty to overturn a decision, in the way the duty to act fairly, breach of which renders the decision invalid does. Might it be a fairer system that when a JR finds inadequate reasoning behind a decision then the decision should be quashed as well? As we know rights can go for and against, and with a JR everything can literally depend on the Judge who is presiding over the JR. This too can be a considerable negative for the JR, whereas with a jury there will be a more balanced view on the matter, begging the question does a single judge in a JR strengthen ones rights or is a jury better placed to decide on the outcome? In the PILS project update of May 2011, it can be seen that: restrictions on an anti-sodomy advertisement placed in a local paper by a member of the Sandown Free Presbyterian Church breached Article 10 of the European Convention on Human Rights; the right to freedom of expression[17] A JR can work to improve the public’s rights but in the case where one section of the community are quite rightly deeply offended by outrageous adverts, a JR has found in favour with a community who are vehemently opposed to MSM activities, and the judge found in favour of them. In another interesting case Northern Ireland Human Rights Commission's Application, [18] the public were told that non-married couples were prevented from or even applying for adoption in Northern Ireland. Despite the whole rationale behind adoption was and is to provide a stable home for children, some in our society believed that could and should only include married couples. This needless to say ruled out same sex couples and those in a civil partnership (the majority of whom are same sex partners) with the stroke of a pen. Consequently their rights have been trodden upon. No doubt it could be argued by the Department, that sexual orientation was not behind the wording of the Act, but given the recent rulings on so called “Gay Blood” it is hard to understand any other interpretation. It appears their Lordships felt the same. They explained: The legislation entails that a gay or lesbian person must choose between being eligible to adopt or affirming their commitment in public in a civil partnership ceremony. There is no rational basis for the proposition that the current eligibility criteria served the best interests of the child excluding persons from the whole adoption process on the sole basis of their relationship status.[19] Can one deduce from this, that the JR is protecting the rights of same sex couples and individuals against the decision of the Department?[20] One thing the JR has not been able to do is change legislation and this is potentially where the JR might be seen to fail the public. If we look at the options open to judges in terms of remedies available, they appear to have very little recourse at their disposal. A Judge may make a prerogative order quashing a decision; they may force a public body from acting or ceasing activity for a limited or permanent period, but there is one remedy missing that is more commonly used in the courts than any other and that is damages. Understandably if a judge awarded damages from a public body to a litigant, then the public would eventually be funding their own damages. If one examines the conflicting rights in the case of abortion in Northern Ireland, you might be forgiven for thinking when you discover how some women have been treated recently, that we are talking about the dark ages, but sadly this is very current. Only in April 2016, a woman was convicted of procuring an abortion in Northern Ireland contrary to the OAP Act[21], allegedly because (a) none are available here and (b) because the lady concerned could not afford to go to England to legally secure an abortion. Despite the lack of assistance to women here in this regard, the Public Prosecution Service thought it necessary to prosecute, even though our laws are at odds with ECHR and despite the fact that a JR held that the abortion act in Northern Ireland currently breaches human rights legislation. It’s no comfort to the unfortunate women who are being prosecuted for procuring an abortion, when Human Rights legislation and a Judicial Review[22] find their rights are being trodden upon and one quite rightly can argue has it strengthened their rights? It’s easy to understand how women may feel the process of the judicial review does little to protect them. If as a result of a JR the courts were able to force the legislature to change legislation that breached Human Rights, then maybe the process of a JR would grow the teeth that it appears it may need. Biblography Books Berry E & Homewood M, EU Law (2nd ed) (OUP, 2014) Elliot M & Thomas R, Public Law, (1st ed) (OUP, 2011) DICEY AV, The Law of the Constitution (8th ed) Oxford, 1914 Irvine D, Human Rights, Constitutional Law and the Development of the English Legal System Hart Publishing (1st ed)(Oxford 2003) Maitland FW, Constitutional History of England (1st ed) CUP Cases [1964] AC40 [2013] NICA 37; [2014] N.I. 263 [2015] NIQB 102 Council of Civil Service Unions and Others Appellants v Minister for the Civil Service Respondent [1985] A.C. 374 In the Matter of an Application by the Northern Ireland Human Rights Commission for Judicial Review v In the Matter of the Law on Termination of Pregnancy in Northern Ireland Ref: HOR9822 Kay v Lambeth LBC [2006], UKHL 10, Loreto Grammar School's Application [2012] NICA 1 Northern Ireland Human Rights Commission's Application [2013] NICA 37 para 20 R. v Legal Aid Area No. 8 (Northern) Appeal Committee Ex p. Angell (1991) 3 Admin. L.R. 189 at 205 R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 Legislation Offences Against the Person Act 1861 Sections 18-25 of the Judicature (Northern Ireland) Act 1978 and by Order 532 of the Rules of the Supreme Court (Northern Ireland) 1980. Journal Article James S, The political and administrative consequences of judicial review Public Administration; WIN, 1996; 74; 4; p613-p637 Constitutional Protection of Human Rights: Judicial Review Human Rights in the Post-Apartheid South African Constitution Ackermann, L. W. H. Page 59 Word Count 1737 not including bibliography and footnotes ________________ [1] [1964] AC40 [2] James S, The political and administrative consequences of judicial review Public Administration; WIN, 1996; 74; 4; p613-p637 [3] Constitutional Protection of Human Rights: Judicial Review Human Rights in the Post-Apartheid South African Constitution Ackermann, L. W. H. Page 59 [4] Sections 18-25 of the Judicature (Northern Ireland) Act 1978 and by Order 532 of the Rules of the Supreme Court (Northern Ireland) 1980. [5] IBID [6] Maitland, constitutional History of England [1888] (New Jersey 2001), P501 [7] Human Rights, Constitutional Law and the Development of the English Legal System (Oxford) 2003, P52 [8] Dicey's definition of parliamentary sovereignty (The Law of the Constitution (1885), pp 39-40) The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament . . . has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament [9] Per Lord Bingham - “…if other means of redress are conveniently and effectively available to a party they ought ordinarily to be used before resort to judicial review’ (Kay v Lambeth LBC [2006], UKHL 10, 8 March 2006; [2006] 2 AC 465) [10] Council of Civil Service Unions and Others Appellants v Minister for the Civil Service Respondent [1985] A.C. 374 [11] Loreto Grammar School's Application [2012] NICA 1 [12] IBID [13] R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213 [14] The way a Government department treats an individual or an organisation such as the School and the way it conducts its processes and implements its bureaucratic processes are all matters for which the Department is and should be accountable in the democratic process He went on to say: it was important that Government departments act in a way that maintains the highest standards of trust. A working democracy must have in place effective mechanisms for holding the Executive to account if its conduct, actions and practices fall below appropriate standards of good and fair administration.” [15] R. v Legal Aid Area No. 8 (Northern) Appeal Committee Ex p. Angell (1991) 3 Admin. L.R. 189 at 205 [16] IBID [17] www.pilsni.org/sites/default/files/pils-updates/Update%2013.04.11.doc accessed 29th March 2016 [18] [2013] NICA 37; [2014] N.I. 263 [19] Northern Ireland Human Rights Commission's Application [2013] NICA 37 para 20 [20] [2015] NIQB 102 [21] Offences Against the Person Act 1861 [22] In the Matter of an Application by the Northern Ireland Human Rights Commission for Judicial Review v In the Matter of the Law on Termination of Pregnancy in Northern Ireland Ref: HOR9822