Judicial Review Red and Green Light Theories PDF

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Examination of the concept of judicial review using red and green light theories...

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Introduction Administrative law is a branch of public law concerned with control of administrative agencies of the government, both at central and local level, with the intention of protecting individuals from excessive intervention. In exercising this function, it subjects governmental bodies to accountability for their acts, or failure thereof, and decision-making through a process of judicial review. This remedy can be availed of by individuals where they are affected by an unlawful act of any public body, or other body exercising a public law function. However, judicial review cannot interfere in the absence of overreaching of jurisdiction by an administrator acting for such body. Two schools of thought exist, namely the Red and Green Light Theories, in respect of how the objective of administrative law is better achieved. While the Red light theory emphasises importance of the law and adjudication in controlling the administrative state, the Green Light Theory proposes a lesser reliance on the judiciary, instead pushing a politically grounded agenda through promotion of good administrative practice. In looking at judicial review in the context of red and green light theories, this essay will analyse; firstly, the process of judicial review with reference to individual and societal perspectives; secondly, red and green light theories and their relevance to administrative law; thirdly, the role of judicial review from the perspectives of these theories, and; finally, the assimilation of these theories in the context of individual impact.

Judicial Review Judicial review is a court action, specific to the High Court, used as a means of enforcement of administrative law. Bearing a supervisory role, the High Court analyses the decisions, acts and omissions of inferior courts and administrative bodies1, ensuring that they do not act in excess of their power. Essentially, it is an examination of the manner in which the public body in question arrived at its decision, concerned not with its correctness but rather lawfulness. This approach is effectively summarized by Laws J. in R v Somerset County Council, ex parte Fewings2: ‘…[I]n most cases, the judicial review court is not concerned with the merits of the decision under review. The court does not ask itself the question, ‘Is this decision right or wrong?’ Far less does the judge ask himself whether he himself would have arrived at the decision in

1 Its jurisdiction does not extend to its superior courts.

2 [1995] 1 A11 ER 513. 1

question…[T]he task of the court, and the judgement at which it arrives, have nothing to do with the question, ‘Which view is the better one?’3. Although implied by the term, judicial review is not an appeal, as confirmed by Garda Representative Association v Ireland4. Appeal involves a full reconsideration of the issues raised as opposed to mere examination of legality, as is the case in judicial review. A decision can be challenged in this way in instances where the decision-making body acted illegally, irrationally or in a procedurally unfair manner. Illegality relates to the control of power and jurisdiction, whereby decision makers must understand and give effect to their legal powers as afforded by the parliament. It also covers the discretion afforded to decision makers, ensuring that it is exercised in a responsible way and to its full extent, as granted by parliament, when responding to matters within jurisdiction. Irrationality applies in circumstances of unreasonableness, in line with the criteria set out by Henchy J. in his judgement of O’Keefe v An Bord Pleanala5. Quashing of a decision on this ground is possible where; it is fundamentally at variance with reason and common sense; it is indefensible for being in the teeth of plain reason and common sense; or, because the Court is satisfied that the decision maker has breached his obligation whereby ‘he must not flagrantly reject or disregard fundamental reason or common sense in reaching his decision’. Procedural impropriety is regarded as a failure on behalf of the decision maker to observe legislative procedural obligations. It also extends to failure to act in accordance with constitutional and natural justice requirements, such as nemo iudex in causa sua, protection against bias, or audi alteram partem, the right to be heard. A contract exists between individuals and the government in the form of mutual compliance, citizens abide by the rules in return for fulfilment of obligations and duties by the State. Due to the imbalance between the two parties, with the State in possession of the majority of resources and power, it is necessary to protect the inherently weaker citizens. At the heart of administrative law lie the interests of individuals, with the objective of ensuring that governmental bodies do not abuse or act in excess of their power. As highlighted by Carr, with the surge in the number of public bodies over the years, individuals are more becoming more affected by administrative

3 ibid. at 515. 4 [1994] 1 ILRM 81. 5 [1993] 1 IR 39.

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decisions6. Judicial review serves as a mechanism for direct legal challenge of maladministration by individuals 7 to recompensate for their weaker position, securing governmental accountability as per the rule of law 8. Judicial review can be sought as a remedy to decisions made by public authorities at a central and local level by any natural or legal persons. Judicial review provides remedies of; an order of mandamus, requiring a decision maker to act; an order of prohibition, disabling a decision maker from acting; an order of certiorari, quashing a decision maker’s decision; an injunction, either prohibiting illegal act or enforcing performance of a duty; and, compatibility, finding of inconsistency with the Human Rights Act 2003. However, despite the various remedies available, it can often be hard for an individual to qualify for judicial review under the narrow criteria and ascertain any such remedy. Consequentially, administration of justice in relation to ultra vires acts and decisions of State bodies has experienced significant limitations for individuals.

Red Light Theory Central to the red light theory is control of the State and its institutions so to prevent abuse of power. In contrast with green light theory, red light theory advances the superiority of law over politics. A highly interventionist approach is favoured to promote good administration, with the judiciary playing an essential role to secure this9. As noted by Beatson et al, under this view courts and public bodies are in opposition, with ‘the former invoking the weapon of administrative law against the latter as part of an ongoing fight against the abuse of governmental power’10. This theory is heavily connected with Dicey, who envisioned a balanced constitution model providing for control of the government by the judiciary and parliament, the former exercising legal control and the latter political control11. The rationale for this authority was the ability of the executive to encroach upon the rights of individuals, in violation of the rule of law. Hayek proclaimed a laissez-faire take on the rule of law, whereby state intervention 6 C. Carr, Concerning English Administrative Law (Oxford University Press, 1941), pp. 10–11. 7 Locus standi is necessary to initiate proceedings. 8 “No man is above the law and no man is below it; nor do we ask any man's permission when we require him to obey it.” Gerhard Peters and John T. Woolley, ‘Theodore Roosevelt; Third Annual Message, December 7, 1903’ (The American Presidency Project 2009) accessed 25 April 2020 9 Judicial review is in harmony with the interventionist approach in this sense. 10 Jack Beatson, Mark Elliott and Martin Matthews, Administrative Law Text and Materials (4th edn, Oxford University Press 2011) 3. 11 Carol Harlow and Richard Rawlings, Law and Administration (3rd edn, Cambridge University Press 2009) 4.

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should be kept to a minimum so to promote the liberal democratic society and pertain from infringing individual rights and freedoms12. This is reflective of the red light theorist stance on importance of citizens’ rights and the on the law as an inhibiting instrument for excessive executive action. In practice, the red light theory is intertwined into administrative and constitutional law, as is exemplified throughout case law. In the event that a public body makes an arbitrary decision, as per the doctrine of ultra vires13, the red light theory is endorsable to protect the rights of affected individuals when judicial review is sought. In England, a red light theorist approach was invoked in the case of Anisminic Ltd v Foreign Compensation Commission (FCC)14. Here a tribunal made a decision supported by section 4(4) of the Foreign Compensation Act 1950, providing that ‘the determination by the commission of any application made to them under this Act shall not be called into question in any court of law’. The appellant brought judicial review proceedings on grounds of an error of law, leaving the House of Lords to rule on the complex issue of whether they could interfere with the decision of the tribunal in light of the ouster clause. Producing a 3:2 majority decision, the court concluded that this legislative provision did not preclude from reviewing a decision on error of law and interfering by quashing if error of law was identified. The judgement of this case is grounded in the red light theory in its protective approach over ability to interfere into maladministration by means of judicial review. In Ireland, the red light theory principles have also been employed in the courts, as was the case in Buckley v Attorney General15. Here an issue arose as to the Sinn Fein Funds Act 1947, resulting in a finding of unconstitutionality by the High Court, with later reaffirmation by the Supreme Court. It was held that section 10 of the act violated the separation of powers16, as it strived to exclude the judiciary from hearing of a case17. Therefore, undertaking a red theorist approach in pursuing perseverance of judicial interference by way of judicial review.

Green Light Theory

12 ibid 6. 13 Acting outside of jurisdiction appointed by legislation. 14 [1969] 2 A.C. 147. 15 [1950] IR 67. 16 ibid. at 70,84. 17As protected in articles 34-37 of the Constitution.

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From the perspective of the green light theory, objectives of administrative law are not best achieved by the judicially interventionist approach but rather by employing democratic political processes. It promotes the idea of facilitating legitimate government action as a means of ensuring good administrative practices amongst the government and its emanations 18. In being critical of the role of the courts in achievement of this objective, the green theorists take on a functionalist approach which emphasizes the role of political institutions such as public bodies. Opposition to overly legalistic control is grounded in the rationale that an elite judiciary applying rights-based ideology, to what they consider to be the public interest, is counter-democratic19. According to this school of thought, accountability and policy creation are political functions. In professing the idea of collectivist approach to rights as group interests central to the political process, particular prominence is afforded to freedom of press and decentralization of the government through local authorities in arriving at this objective. An argument is made as to efficiency of the politically founded approach in referencing internal and external controls20.While internal controls are more effective than external controls, the fundamental control measure of administrative law comes under the latter, in that judicial review. With the view that this should be replaced or minimized by an internal political control, green light theory argues that the retrospectivity of legal control is not affective as it does not promote good practices but merely strikes down maladministration. It is also submitted that the prospective aspect of legislation is a more efficient means of reaching the objective of administrative law due to its preventative aspect. Green light theory is of the view that courts should not be able to interfere with measures envisaged in statute, as done in judicial review, but instead allow for policy to take seniority over law, restricting it to a facilitating mechanism. The green light approach expresses concerns as to the excessive formalism of the administrative legal interventions as an obstacle to effective administration, identified by Harlow and Rawlings as “hair splitting distinctions and terminological contortions”21. This is reflected in practice, where the grounds for obtaining judicial review are very limited and technical, causing a reduction in administration of justice. The case of Meadow v The Minister for Justice, Equality

18Beatson (n 10) at 3. 19Beatson (n 10) at 4. 20 For the purposes of this essay, internal controls are understood to be those within an organization, while external controls are those originating from outside an organization. 21 Harlow and Rawlings (n 10) at 31.

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and Law Reform22 reflects these concerns, here hesitance to interfere can be observed on behalf of the court employing a narrow consideration of scope of judicial review. However, there are circumstances in which the courts employ deference so not to frustrate the administration process, conforming to the green light theorist approach. One such illustration is in circumstances where the case up for judicial review involve national security considerations, as in the case of Council of Civil Service Unions v Minister for the Civil Service23. The House of Lords held that the court is not able to review such matters, establishing precedent that possibility of judicial review is dependent on the type of executive power. Deference and nonjusticiability in terms of judicial review is an incorporation of the green light theory into practice of administrative law.

Amber Light Theory While the opposing green and red light theories of administrative law promote differing perspectives of effective administration, the reality is that a combination of the two is utilized in practice. This is referred to as the ‘amber light theory’, which merges the two extremes into a more neutral middle ground. The role of the judiciary encompasses more than what is outlined in the red light theory, as effectively summarized by Sir John Donaldson MR in Lancashire County Council ex parte Huddleston24: ‘a new relationship [has emerged] between the courts and those who derive their authority from the public law, one of partnership based on common aim, namely the maintenance of the highest standards of public administration’25 Despite the criticism of judicial intervention in the green light theory, it could be argued to fit into its agenda of promoting good administration practice by yielding prospective criteria to be met by public bodies in the future. A move away from the strict red light theory interventionist approach is reached as a result of the surge in formation of governmental bodies such as tribunals and local authorities. Nevertheless, judicial review remains as a check and balance to these institutions where the circumstances require. Crucial to the combination of these two schools of thought is the resulting implications for individuals in the Irish society. It is important to adapt 22 [2010] IESC 3. 23 [1984] UKHL 9, also referred to as the GCHQ case. 24 [1986] 2 All ER 941. 25 ibid. at 945.

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and scale the two theories in a way which gives the best outcome to those affected by public law. While it is crucial to keep the supervisory role of the courts in the analysis of decision making processes, it is nevertheless necessary to impose limitations to this. Ouster clauses in legislation can prove effective in ensuring that the judiciary does not interfere where this is not necessary. This pushes the principles of law to be effectively administered, so that individuals can enjoy greater confidence in the decisions arrived at by quasi-judicial bodies and public authorities, without undue intervention. However, going so far as to reduce judicial role to a symbolic one would not be of benefit to citizens requiring this legalistic intervention where abuse of power occurs. Therefore, it is necessary to employ an approach which correlates to both theories, with the vocal points of the ‘amber light theory’ being values extracted from the green and red light theory in a moderate capacity.

Conclusion In the examination of judicial review in the context of red and green light theories, it has been shown that administrative law can have varying determinations on how the objective of individual protection can be reached. The red light theory advocates for this to be secured through maximum intervention by the legal branch so to deter and prevent abuse of power. As mostly relevant to the mechanism of judicial review, it provides remedies for those directly affected by flawed decision making process. However, utilising such a strict legal approach in practice can instead impede administration of justice for individuals due to excessive focus on technicality. Therefore, it is necessary to promote deference to the decision making process of administrative authorities where intervention can be done without. Notwithstanding this need, it is also essential to maintain a reliable means of public challenge of such decisions in cases where arrival was carried out in ultra vires, thereby keeping the rule of law intact. Green light theory professes importance of political agenda over the legal scheme endorsed by the red light theory. Its intention of minimising judicial influence, while necessary to a certain extent for benefit of individuals, is too radical a proposition. A balance must be reached in ascertaining a steady judicial role which does not overstep its bounds by engaging in undue interference. The amplification of legislative power in administrative law is a beneficial green light theory proposal, key to striking of balance. The beneficial aspects of both theories combine to form the ‘amber light theory’, which as submitted is the best serving for the interests of citizens. 7

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Bibliography Books: C. Carr, Concerning English Administrative Law (Oxford University Press, 1941) C. Harlow and R. Rawlings, Law and Administration (3rd edn, Cambridge University Press 2009) J. Beatson, M. Elliott and M. Matthews, Administrative Law Text and Materials (4th edn, Oxford University Press 2011) Cases: Ireland: Buckley v Attorney General [1950] IR 67 Garda Representative Association v Ireland [1994] 1 ILRM 81 Meadow v The Minister for Justice, Equality and Law Reform [2010] IESC 3 O’Keefe v An Bord Pleanala [1993] 1 IR 39 England and Wales: Anisminic Ltd v Foreign Compensation Commission (FCC) [1969] 2 A.C. 147 Council of Civil Service Unions v Minister for the Civil Service [1984] UKHL 9 Lancashire County Council ex parte Huddleston [1986] 2 All ER 941 R v Somerset County Council, ex parte Fewings [1995] 1 A11 ER 513 Legislation: Ireland: Human Rights Act 2003 Sinn Fein Funds Act 1947

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Websites: Gerhard Peters and John T. Woolley, ‘Theodore Roosevelt; Third Annual Message, December 7, 1903’ (The American Presidency Project 2009) accessed 25 April 2020

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