BEK Chapter 31: Judicial Review of Administrative Action II
SCOPE, STANDING AND RELIEF
INTRODUCTION
O’Reilly v Mackman [1983] – established a general rule of procedural exclusivity
o HL held = contrary to public policy, and as such an abuse of the process of the court,
to permit a person seeking to establish that a decision of a public authority infringed
rights to which he was entitled to protection under public law’ [to proceed other
than by way of judicial review]
o Where public law rights were at stake, the claimants could only proceed by way of
judicial review. They could not originate their action under the general civil law
procedure, because that would be avoiding the procedural safeguards afforded to
public authorities by the judicial review procedure, such as the requirement of
sufficient interest, timely submission and permission for judicial review.
Legal accountability
o Trade-off between accountability and efficiency
More accountability, less efficiency in government doing its jobs
o Legal accountability vs. political accountability
Legal constitution (judicial review)
Political constitution (SoP, RoL)
Currently, the line between legal and political accountability is more blurred
o The larger the number of grounds and the more expansive the interpretation, the
more accountability you have
Efficiency drops, since more decisions are subject to review by courts
o Scope, standing, remedies = how judicial review operates
The larger the scope of judicial review, the more expansive the
interpretation of standing and remedies more accountability, less
efficiency
Procedure of application for judicial review
o After determining grounds for judicial review
Merits of the case Justiciability, etc.
o Are there alternative remedies apart from judicial review?
What if there are remedies available in the statute?
o If no alternative remedies, the applicant has to have standing
o Scope of judicial review
FORMS OF RELIEF/REMEDIES
Public law remedies - which used to be known as the ‘prerogative orders’
o Certiorari (quashing orders) decision has no legal effect (regarding discretionary
powers)
o Prohibition (prohibiting orders) ordering the body to refrain from a certain illegal
action (regarding discretionary powers)
o mandamus (mandatory orders) enforce the performance of duty
o Traditionally, these prerogative orders were not available against:
Decision makers who derive their power solely from contract
‘The Crown’ – although declaration is available against the Crown
SCOPE, STANDING AND RELIEF
INTRODUCTION
O’Reilly v Mackman [1983] – established a general rule of procedural exclusivity
o HL held = contrary to public policy, and as such an abuse of the process of the court,
to permit a person seeking to establish that a decision of a public authority infringed
rights to which he was entitled to protection under public law’ [to proceed other
than by way of judicial review]
o Where public law rights were at stake, the claimants could only proceed by way of
judicial review. They could not originate their action under the general civil law
procedure, because that would be avoiding the procedural safeguards afforded to
public authorities by the judicial review procedure, such as the requirement of
sufficient interest, timely submission and permission for judicial review.
Legal accountability
o Trade-off between accountability and efficiency
More accountability, less efficiency in government doing its jobs
o Legal accountability vs. political accountability
Legal constitution (judicial review)
Political constitution (SoP, RoL)
Currently, the line between legal and political accountability is more blurred
o The larger the number of grounds and the more expansive the interpretation, the
more accountability you have
Efficiency drops, since more decisions are subject to review by courts
o Scope, standing, remedies = how judicial review operates
The larger the scope of judicial review, the more expansive the
interpretation of standing and remedies more accountability, less
efficiency
Procedure of application for judicial review
o After determining grounds for judicial review
Merits of the case Justiciability, etc.
o Are there alternative remedies apart from judicial review?
What if there are remedies available in the statute?
o If no alternative remedies, the applicant has to have standing
o Scope of judicial review
FORMS OF RELIEF/REMEDIES
Public law remedies - which used to be known as the ‘prerogative orders’
o Certiorari (quashing orders) decision has no legal effect (regarding discretionary
powers)
o Prohibition (prohibiting orders) ordering the body to refrain from a certain illegal
action (regarding discretionary powers)
o mandamus (mandatory orders) enforce the performance of duty
o Traditionally, these prerogative orders were not available against:
Decision makers who derive their power solely from contract
‘The Crown’ – although declaration is available against the Crown
