OReilly versus Mackman Case - Essay Example

O’Reilly v Mackman The case of O’Reilly v Mackman1 is significant in that it is considered an anomaly of the common law in establishing a strict exclusionary rule, whereby it would be deemed an abuse of the process of law for a plaintiff who seeks action against a public body for infringement of his rights to initiate proceedings by any means other than a judicial review. In this case, a convict brought action against the prison parole board but pursued action through a Writ. Lord Diplock held that judicial review was the only way in which action could be brought to test public law rights, therefore in effect the O’Reilly decision established the strict exclusionary rule in judicial review procedure of decisions of public bodies and it could be followed only where no remedy exists in private law or where other alternative remedies cannot be found. This case is primarily one which was concerned with the procedural niceties of judicial review, laying out the principle that public law claims were to be dealt with exclusively by judicial review and private law claims were to be dealt with by Writ. Therefore this decision set a precedent in that it resulted in a locking of the remedies of injunction and the declaration that had entered the realm of public domain by Common law, permanently into that domain. This does not appear to have been the original intent behind Lord Diplock’s judgment, for he has clearly stated that the “Order 53 does not expressly provide that procedure by way of application for judicial review shall be the exclusive procedure available” for obtaining remedy by injunction or declaration for infringement of rights under public law2. However, the fact that in this case, the invocation of a Writ was deemed to be an abuse of the process of the Court resulted in the subsequent position in law that only through the invoking of public law procedure could the remedies of declaration and injunction be obtained under judicial review. The ultra vires doctrine: The orthodox approach to judicial review is based upon the absolute and indivisible sovereignty of the British Parliament3. The O’Reilly case also established that if the nature of the claim that is being made is that the public body acted ultra vires or outside the scope of its statutory powers, then this is a matter for judicial review. The ultra vires doctrine is based on the principle that all legal duties are created by Parliament4 therefore the judicial function extends to the scope of controlling of exercise of such statutory powers. However Elliot5 highlights the conflict between ultra vires theory and common law theory which acknowledges the Court’s responsibility for the rule of law. He proposes a modified ultra vires doctrine in which there is no link between judicial review and the implicit intention of Parliament, rather “the courts are fulfilling the intention of Parliament which legislates for a constitutional order in which the rule of law is fundamental.”6 Bamforth and Craig however have contested Elliot’s modified doctrine and emphasized the common law theories that assign constitutional responsibility upon the Courts for the rule of law and thereby a different standard of judicial review on legality is supported by this view.7 Others such as T.R.S. Elliot have argued that the debate over the ultra vires doctrine is unimportant in the context of determining the foundations of judicial review, since such an analysis must explore the interrelation between Parliamentary sovereignty and the rule of law7. In the case of CCSU v Minister of State for Civil service8, Lord Diplock set out three grounds for review (a) illegality – When a decision is to be challenged on the grounds of illegality, there must be a sufficient number in a group to bring a case, in order to establish that they have the standing to file a suit9. (b) Irrationality – in that the decision of the public body should be of such an unreasonable nature that no reasonable authority could have reached it and (c) Procedural impropriety. In the case of UNECTEF v Heylens10 has imposed a duty upon public administrative bodies to state the reasons upon which their decisions are based. Craig also points out that bodies that are challenged for their decisions are required to provide reasons for them, but this general duty is based on substance, not form11, therefore they can only assess the legality of administrative action. Moreover the Courts may also independently assess the compatibility of domestic legislation with Convention rights, and even prior to the Human Rights Act, British Judges have independently assessed Government actions in the areas impacting upon fundamental rights and where necessary, invalidated such infringing Government actions.12 Subsequent cases after O’Reilly: An exception to the procedural exclusionary rule laid out in O’Reilly was set out in the case of Roy v Kensington and Chelsea and Westminster FPC 199213. It was held that private law could be used, where the case involved a mix of private and public law issues. In this case, it was held that a medical practitioner could bring action against his employer even where public law matters were involved, since his private rights could not be effectively determined without examining the validity of a decision by a public body. Following this, other cases have also held that the exclusionary rule will not apply in civil cases where an individual seeks to question the validity of a public law decision.14 In the case of Wandsworth LBC v Winder15, there was a counter claim made to a private law claim that involved public rights rather than private, hence it did not fall within the scope of the exceptions in Roy v Kensington. As a result, there was an attempt to strike out the counter claim on the basis that it was an absue of the process sof law, as laid out in O’Reilly. However, it was held in this case that private law action could still be followed if it was based on the fact that the original claim was on actions that were ultra vires. The House of Lords held that the defendant could choose his manner of defence and therefore the judgment in this case established that a case can in effect, be transferred from one form of hearing to another under the Civil Rules Procedure. The issue of the vires of law in establishing a claimant’s eligibility to utilize private law was also raised in the criminal case of Boddington v British Transport Police16.The defendant in this challenged certain bye-laws as being ultra vires, therefore applying the O’Reilly procedure the challenge of judicial review should have come within the scope of public law, however it was held that unless there was clear Parliamentary intent to the contrary, an individual will be allowed the right to select the form of hearing, since it may not be financially possible for him in every instance to pursue judicial review neither is there a guarantee that can be offered.17 Craig has commented on this case and has pointed out that justice for the individual can be better ensured by facilitating the process of justice rather than complicating it.18 Judicial review can traditionally be brought only against public bodies whose powers were derived from statute. But in the case of R v Criminal Injuries Compensation Board ex parte Lain19, it was held that judicial review could be initiated against a body established by royal prerogative as well. Thus, all the above cases have set out exceptions to the O’Reilly rule, which have been necessitated in the interest of preserving the rights of individuals and ensuring access to justice. Community Law: This principle of procedural exclusivity laid out in the O’Reilly case has created difficulties especially in terms of implementation of community law. In the context of universal human rights as mandated by the European Convention of Human Rights, the question that arises is, to what extent it is autonomous from the all pervasive power of Parliament, especially as it underlies the judicial review process?20 The current existence of the Human Rights Act has resulted in significant changes within the UK, with the individual supremacy mandated by the European Convention often rising in conflict with established principles of UK law and statutes, although as pointed out by Justice Arden, Parliamentary sovereignty is still preserved and the Courts “are not given any power to strike down statues which infringe Convention rights.”21Judicial review is unavailable against certain bodies22 and when a statutory immunity exists. Even when a decision of a public body may lend itself to judicial review, there are other restrictions on standing, cross examination and findings etc as outlined above which may be a further impediment in the protection of Community law rights.23 Conclusion: The exclusionary principle of O’Reilly has been modified in practice to ensure greater access to justice. However, this has also created difficulties in establishing a clear divide between public and private law within the U.K. Craig has pointed out how the decision in the Boddington case places the burden of determining the validity of laws upon magistrate courts.24 The difficulties inherent in determining when a matter falls into the private or public domain presents a conundrum, as stated by Lord Woolf, that huge resources and time of the courts are still being directed towards determining the appropriate procedure to be used.25 Therefore, the O’Reilly principle cannot be applied in every case, where necessary exclusions may apply. Bibliography Books/Articles: * Allan, T.R.S., 2002. “The Constitutional Foundations of Judicial review: conceptual conundrum or interpretative enquiry?” The Cambridge Law Journal, 61:87-125 * Austin, J, 1954. “The province of jurisprudence determined.” London: Weidenfield and Nicholson * Bamforth, N and Craig, P, 2001. “Constitutional Analysis, Constitutional principle and Judicial review.” Public Law, 763. * Craig, P.P, 1998. “Collateral attack, procedural exclusivity and judicial review.” 114 LQR 535 * Craig, P.P., 1991. Administrative Law 3rd edn. Sweet and Maxwell, at pp 311 * Elliot, Mark, 2001. The Constitutional Foundations of Judicial review, Oxford: Hart Publishing at 44-49 * Justice Arden, 2004. The interpretation of UK domestic legislation in the light of European Convention on Human Rights jurisprudence Statute Law Review, 25(3):166 * McCrudden, Christopher, 2000.A common law of human rights?Transnational judicial conversations on constitutional rights Oxford Journal of legal Studies, 20(4): 502 * Steiner, Josephine, 1995. “Enforcing EC Law” London: Blackstone Press. * Walker, Neil, 1999. Setting English Judges to Rights Oxford Journal of Legal Studies, 133 Cases: * Andreou v. ICAEW [1998] 1 All E. R. 14 (CA) * Boddington v British Transport Police (1998) 2 WLR 639 * CCSU v Minister of State for Civil Service (1985) AC 374 * Heylens (222/86 UNECTEF v Heylens [1987] ECR 4097 * Jockey Club case (R v Disciplinary Committee of the Jockey Club, ex parte Aga Khan [1993] 2 All ER 853) * Mercury Communications Ltd. v. Director General of Telecommunications [1996] 1 W. L. R. 48 * O’Reilly v Mackman (1983) 2 AC 237 (HL) * O Rourke v. Camden London Borough Council [1997] 4 All E. R. 747 (CA) * R v Criminal Injuries Compensation Board ex parte Lain (1967) 2 All ER 770 * R (Tucker) v the Director General of the National Crime Squad [2003] EWCA Civ 57 * Roy v Kensington and Chelsea and Westminster FPC (1992) 1 All ER 705 * Trustees of the Dennis Rye Pension Fund and Another v Sheffield City Council (1997) 4 All ER 747 at 749 * Wandsworth London Borough Council v Winder (1985) AC 461 Read More