ABSTRACT

You are called upon in the introduction to address issues such as: what is public law, what is constitutional law within public law, what is administrative law within constitutional law, and what is judicial review within administrative law? The constitutional importance of judicial review lies in the ability of judges of the High Court to use the prerogative orders of mandamus, certiorari and prohibition as a check on the powers of the executive within our modern constitution. Illustrations of this power in operation can be seen in the cases of Council for Civil Service Unions v Minister for the Civil Service (1985), R v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement (1994) and R v Secretary of State for the Home Department ex parte Fire Brigades Union

(1995). However, two specific cases must be used when answering this question. The first is the House of Lords decision of O’Reilly v Mackman (1983). It was in this case that Lord Diplock argued that the reasons justifying the avoidance of the ‘Rules of the Supreme Court’ (White Book) Order 53 procedure had been removed with the procedural reforms of 1977 (Rules of the Supreme Court (Amendment No 3) 1977 (SI 1977 No 1955)). Lord Diplock argued that there were sound policy reasons justifying the insistence that an applicant overcome the obstacles of leave, locus standi and undue delay contained within the Order 53 procedure. Lord Diplock considered that any failure on the part of an applicant to use the Order 53 procedure was an abuse of the process of the court and should result in the action being ‘struck out’. The only exceptions he permitted to this general rule were instances where neither party objected to proceeding via writ or where the invalidity of the decision arose as a collateral issue under a private law claim. What is meant by leave may be explored by reference to the Public Law Project Report Judicial Review in Prospective: An investigation of the trends in the use and operation of the judicial review procedure in England and Wales (1993). Locus standi may be consdered by reference to R v Secretary of State for Employment Secretary ex parte Equal Opportunities Commission (1994). For undue delay refer to R v Dairy Produce Quota Tribunal ex parte Caswell (1990).