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	Irish Law Reform Commission Papers and Reports
You are here: BAILII >> Databases >> Irish Law Reform Commission Papers and Reports >> Public Inquiries Including Tribunals Of Inquiry, Report on (LRC 73-2005) [2005] IELRC 73(8) (May 2005) URL: http://www.bailii.org/ie/other/IELRC/2005/3(8).html Cite as: [2005] IELRC 73(8)

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8. CHAPTER 8 JUDICIAL REVIEW AND APPLICATIONS TO THE HIGH COURT

A Introduction

8.01     In this chapter the Commission examines aspects of judicial review and the process by which tribunals may apply to the High Court for directions in respect of certain decisions they make.

B Judicial Review Proceedings

8.02     This part will consider two possible methods of 'fast tracking' judicial review proceedings. These are, first, reducing the time limits for the institution of judicial review proceedings, second, giving the tribunal the right to apply to the High Court for directions in relation to the performance of any of its functions.

(1) Reducing the Time Limits for Judicial Review

8.03     In the Consultation Paper the Commission recommended the imposition of a time limit of 28 days on the institution of judicial review proceedings in the context of tribunal proceedings, subject to the caveat that this period may be extended by the court where there exists good and sufficient reason for doing so.^[1] The Consultation Paper examined the operation of similar time limits in respect of planning and immigration law and the case law surrounding them.^[2] Time limits have the advantage of ensuring certainty and avoiding unnecessary costs and wasteful appeal procedures. In addition, according the courts a discretion to extend the time-period where it considers it just and equitable to do so ensures that the time limits do not act as an unreasonable and unjustifiable restriction on a plaintiff's constitutional rights.

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(2) Discussion

8.04     After the publication of the Consultation Paper, the Commission published a Report on Judicial Review Procedure.^[3] In that report, the Commission recommended that a time limit of 28 days from the date on which the grounds for the application first arose for the institution of judicial review proceeding would be appropriate in respect of specialist judicial review schemes. It was recommended that this be subject to a judicial discretion to extend this time-period where the High Court considers there to be "good and sufficient reason for doing so".^[4] The Commission sees no reason to depart from that general approach in the context of tribunals of inquiry and accordingly recommends that a 28-day time limit from the date on which the grounds for the application first arose should be introduced, subject to a discretion to extend this time-period where the High Court considers that there is a "good and sufficient reason for doing so".

(3) Recommendation

8.05     The Commission recommends that a statutory time limit of 28 days from the date on which the grounds for the application first arose should be placed on the institution of judicial review proceedings in the context of public inquiries, subject to a judicial discretion to extend this time-period where the High Court considers that there is a "good and sufficient reason for doing so".

C Application of Tribunal of Inquiry to the High Court

(1) Application to the High Court

8.06     In the Consultation Paper the Commission recommended that a tribunal of inquiry should be allowed to make an application to the High Court for directions in relation to the performance of any of its functions.^[5] The High Court would then have a discretion as to whether to hear the application in public or private depending on the subject matter of the hearing. The Consultation Paper noted with

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approval the operation of such a procedure in section 25(1) of the Commission to Inquire into Child Abuse Act 2000.^[6]

8.07     Such a provision has the advantage of enabling a tribunal to seek confirmation from the High Court as to the legality of its decisions. At present, if an interested party expresses dissatisfaction as to the legality of, for example, the terms of reference, but fails to initiate judicial review proceedings, the tribunal (being unable to initiate judicial review proceedings itself) must proceed subject to the risk that its proceedings could later be halted. By giving a tribunal the power to refer such a matter to the High Court, much time and expense might be saved. In addition, such a power would accord with the inquisitorial nature of the tribunal. Being a body appointed to look into certain matters it is logical that it should be given standing to test the legality of its own powers where those are in doubt. Furthermore, a tribunal avoids delays by having a contentious matter ruled on by the High Court and there is thus less uncertainty and delay caused to the tribunal's hearings and process.

8.08     The Commission therefore sees no reason to depart from the view expressed in the Consultation Paper and recommends that the tribunals of inquiry legislation be amended to allow a tribunal apply to the High Court for directions, in a manner comparable to that contained in the Commission to Inquiry into Child Abuse Act 2000.

8.09     The Commission recommends that the tribunals of inquiry legislation be amended to allow a tribunal apply to the High Court for directions, in a manner comparable to that contained in the Commission to Inquire into Child Abuse Act 2000.

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(2) Expedition

8.10     In the Consultation Paper the Commission recommended that a provision be inserted into the tribunals of inquiry legislation similar to that currently contained in section 25(4) of the Commission to Inquire into Child Abuse Act 2000, to place an obligation on the High Court to deal with proceedings concerning tribunals of inquiry as expeditiously as possible. The Commission is conscious of the fact that such cases are currently heard as expeditiously as possible but considers that this good practice should be elevated to statutory requirement.

8.11     Accordingly, the Commission recommends that the tribunals of inquiry legislation be amended to include a provision placing an obligation on the High Court to deal with proceedings concerning tribunals of inquiry as expeditiously as possible. Such a provision would enable tribunals of inquiry to proceed as expeditiously as possible.

8.12     The Commission recommends that the tribunals of inquiry legislation be amended to include a provision placing an obligation on the High Court to deal with proceedings concerning tribunals of inquiry as expeditiously as possible. Such a provision would enable tribunals of inquiry to proceed as expeditiously as possible.

Note 1   See the Consultation Paper at paragraph 5.76.     [Back]

Note 2   See the Consultation Paper at paragraph 5.73-5.75.     [Back]

Note 3   (LRC 71-2004).    [Back]

Note 4   (LRC 71-2004) at paragraph 6.08.     [Back]

Note 5   See the Consultation Paper at paragraph 5.83.     [Back]

Note 6   Section 25(1) of the Commission to Inquire into Child Abuse Act 2000 provides that: “The Commission may, whenever it considers appropriate to do so, apply in a summary manner to the High Court sitting otherwise than in public for directions in relation to the performance of any of the functions of the Commission or a Committee or for its approval of an act or omission proposed to be done or made by the Commission or a Committee for the purposes of such performance.” See Consultation Paper at paragraphs 5.79-5.83 for a discussion of how section 25(1) has operated in practice.    [Back]