Administrative Law: Main Grounds Of Challenge For A Judicial Review

Administrative law is regarded and described as a body of law and legal framework which regulates governments powers. Such government powers develop from statute law, the Royal Prerogative and legislation from the EU. The most significant purpose of administrative law is to control decision making on the basis of these powers.

Decisions made by governments, both on a national or local level, effect on public society organisations. The rule of law requires that a person must be able to challenge decisions made about them by the state.

One main way in which such public organisations can challenge said decisions made by governments is through a judicial review. A Judicial Review is a process by which the courts, usually the High Courts, review the lawfulness of a decision made or action taken, or failure to take action, by a public body. A judge will then considers whether the public body has acted in accordance to its legal obligation. The courts role is supervisory and cases rarely involve financial compensation.

Judicial reviews are about in general the supervision of administrative decision making. In the case of R v Chief Constable, ex p McKenna [1992] it found that a “Judicial Review is the appropriate remedy where a person seeks to establish that the decision of a person or authority infringes rights protected by public law”.

There are five main grounds of challenge for a Judicial Review, these include, illegality, procedural impropriety, irrationality, human rights obligations and legitimate expectations.

A judicial review is generally a remedy of last resort, therefore, it is unavailable where there is a suitable alternative remedy. There are a number of benefits from judicial reviews including; Flexibility and quickness , Procedurally simple, Two stage process, by this there is a Leave Stage and then Full Hearing, Vulnerable groups are protected, in other words there are minority rights.

When supporters of fox hunting failed to convince Parliament to drop the Hunting Bill, they turned to the courts. They were just one of many individuals and groups using the increasingly popular mechanism known as Judicial Review. Judicial Review is the procedure which questions the lawfulness of actions by public bodies whether local authorities, tribunals, Parliament or the executive.

Section 6 of the Human Rights Act provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. Consequently, following the entry into force of the Human Rights Act, victims of such acts by public bodies have been able to challenge them before the national courts, including by way of Judicial Review, without having to resort to the ECHR. Section 6 of the Human Rights Act allows persons whose rights have been infringed to challenge both specific administrative decisions and the validity of subordinate legislation under which decisions are made.

A prime example of an important judicial review case is that of ‘In the matter of an application by Siobhan McLaughlin for Judicial Review’. In this case Siobhan Mcloughan’s partner of 23 years had died and she had been denied her claims for bereavement payment and Widows Paid Allowance by the Northern Ireland Department of Communities on the grounds that she was neither married or in a civil partnership with Mr Adams. Following this, Miss McLaughlin applied for judicial review of the decision on the grounds that section 39A(1) of the Social Security Contributions and Benefits (Northern Ireland) was incompatible with the European Commission of Human Rights . The case of Siobhan McLaughlin poses as evidence of how the relationship between law and society is outdated and worth reviving. It sets as a precedent for future cases. It highlights that there is a serious need for legislation to change in order for it to be applicable to all members of our diverse modern society.

A Police Ombudsman is another way in which individuals can challenge state decisions. In general a Police Ombudsman provides an independent, impartial system for the handling of complaints about the conduct of police officers under the Police (Northern Ireland) Acts of 1998 and 2000.

If an individual has a complaint about police practice in Northern Ireland, they can contact the Office of Police Ombudsman for NI. This office provides an independent unbiased police complaints system for individuals and the police of NI. The police Ombudsman investigates complaints about the conduct of police officers and makes recommendations on criminal, disciplinary and misconducted matters.

There are two main components of a police ombudsman’s investigations, these include both current and historical. In terms of historical incidents these generally relate to cases from the incidents during the conflict in NI between 1968 and 1998 (the Troubles). These cases investigate incidents where police may have been responsible for deaths or serious misconduct.

An example of the police ombudsman office at work can be identified in the case where a police officer failed to arrange medical assistance for a man who is said to be “lucky to be alive”. In this case The Police Ombudsman concluded that a police officer failed to summon medical assistance for a man who had been attacked outside a nightclub, and who said he was later told by medical staff that he was ‘lucky to be alive’. The man’s mother reported the incident the following afternoon and police commenced an investigation into the attack. During his enquiries into whether police had failed to assist the man, a Police Ombudsman investigator obtained all relevant police documentation and also established that the encounter had not been captured on CCTV. Police records showed that police had responded to two reports of fighting in the area that night. Four police cars attended at around 12.30am, and three cars were sent in response to more fighting shortly after 2am. Although the Police Ombudsman investigator found that an officer had failed to record the man’s details or secure him medical assistance no disciplinary action could be taken as it proved impossible to positively identify the officer involved.

While this case did not lead to any disciplinary action against the police officer it acts as a prime example of the work the police ombudsman does to help individuals challenge those in authority to ensure their rights are upheld and that those in authority are not abusing their power. The potential outcomes that could have come out of this case if there was more hard evidence against the police officer for breaching police procedures or the police Code of Ethics could have been that the police ombudsman would have recommended that the officer be disciplined or recommend that the officer should undertake training or other measure designed to improve their performance at work. The police will then consider evidence brought before them by the police ombudsman and make a decision.

Another tool for addressing issues of law is through Tribunal hearings. Administrative tribunals are set up to be less formal, less expensive, and a faster way to resolve disputes opposed to using a traditional court system. Tribunals are independent and judicial statutory bodies. They hear and determine appeals by individuals against initial decisions made by governmental decision-makers. Tribunal members who make decisions (adjudicators) usually have special knowledge about the matter they are requested to deliberate. Such adjudicators have special training and experience to conduct hearings, however they are not judges. Yet, like a trial in court before a judge, the adjudicators are in authority to conduct a fair hearing and responsible making final verdicts on the disputes. They do this by considering the evidence and applying legislation, case law, and policies that relate to your case.

Tribunals have several advantages in allowing individuals to challenge state decisions. Firstly , cases are brought to court fairly quickly and many are dealt with well within a day meaning both parties involved are aware of the exact date and time at which a case will be heard therefore minimising time-wasting for all. Tribunals also usually do not charge fees and each party usually pay their own cost. This means that individuals don’t have any financial problems to worry about. The informal setting of tribunals is another benefit as it allows individuals to feel more comfortable in the setting. However Other disadvantages of tribunals are lack of openness to the public, in other words, the fact that some tribunals are held in private can lead to suspicion about the fairness of the decisions made. Moreover even though the procedures are general informal, the law with which some tribunals fall under was complex and the adjudicative process is sometimes highly technical. Furthermore, there is also an unfair balance between represented and unrepresented parties. Individuals who were financial secured and could hire legal representation could find themselves at an advantage against those who cannot afford legal representation. Lord Scarman states that he had seem Tribunals as a danger to the prestige of the judiciary and the authority of the ordinary law. In summary while tribunals are extremely useful in its own right. There are many strengths with Tribunals in order to assist individuals to challenge state decisions however there are also some weaknesses associated with tribunals, therefore it is evident that there needs to be improvements made.

In conclusion, it is obvious that there are numerous ways in which an individual can challenge any state decision they deem unfitting. As stated above individuals can contact the Police Ombudsman for issues surrounding police conduct, they can also use Judicial Reviews to review any decision they believe to be incorrect. Judicial Reviews can give power to the courts to review statutes and governmental actions to determine whether they conform to rules and principles laid down in constitutions. Individuals can turn to tribunals, main tribunals include; employment tribunals, immigration services tribunals, pensions appeal tribunals etc. as there is a wide range of tribunals offered to individuals it is possible they find the correct one to deal with their issue most efficiently. It is important to understand the different between Judicial Reviews and Tribunals, for example, Tribunals are directly responsible for considering the merits of the initial decisions, whereas, the Judicial Review court is limited to examining whether or not a decision is lawful.