RECENT DEVELOPMENTS IN JUDICIAL REVIEW Siobhn Phelan S

RECENT DEVELOPMENTS IN JUDICIAL REVIEW Siobhán Phelan S. C. February 27, 2017

Structure • Practice Directions • Statutory Instruments • Some significant recent cases

APPLICABLE PRACTICE DIRECTIONS HC 02 – EX PARTE APPLICATIONS FOR JUDICIAL REVIEW. HC-57 – COSTS APPLICATIONS IN UNCONTESTED PROCEEDINGS UNDER ARTICLE 40. 4 OF THECONSTITUTION AND FOR JUDICIAL REVIEW (FEBRUARY, 2012). HC 59 – EX PARTE MOTIONS TO THE COURT (AUGUST, 2013) HC 68 – CIVIL: WRITTEN SUBMISSIONS (SEPTEMBER, 2016) HC 69 – ASYLUM, IMMIGRATION AND CITIZENSHIP LIST (SEPTEMBER, 2016)

Changes by way of Statutory Instrument FAIRLY SIGNIFICANT CHANGES INTRODUCED INORDER 84 RSC UNDER TWO STATUTORY INSTRUMENTS, ONE WHICH CAN ONLY BE DESCRIBED AS “NEW” IN RELATIVE TERMS : • RULES OF THE SUPERIOR COURTS (JUDICIAL REVIEW) 2011 SI( NO. 691 OF 2011) • RULES OF THE SUPERIOR COURTS (JUDICIAL REVIEW) 2015 SI( 345 OF 2015)

RULES OF THE SUPERIOR COURTS (JUDICIAL REVIEW) 2011 SI( NO. 691 OF 2011) SIGNIFICANT CHANGES INCLUDED: THE TIME-LIMIT FOR CERTIORARI IS REDUCED TO THREE MONTHS FROM SIX MONTHS; CHANGES REGARDING PLEADING (SOME RECENT CASE-LAW RELEVANT TO THIS); CHANGES REGARDING EXTENSION OF TIME APPLICATIONS (RECENT CASE-LAW); EXPRESS DISCRETION TO REQUIRE THAT APPLICATION IS BROUGHT ON NOTICE (SIMPLY FORMALIZES A PRE-EXISTING PRACTICE WITH THE RESULT THAT IT IS NOW MORE COMMON); EXPRESS DISCRETION TO TREAT THE APPLICATION FOR LEAVE AS THE FULL HEARING “A TELESCOPED HEARING”. (SIMPLY FORMALIZES A PRE-EXISTING PRACTICE WITH THE RESULT THAT IT IS NOW MORE COMMON).

RULES OF THE SUPERIOR COURTS (JUDICIAL REVIEW) 2015 SI( 345 OF 2015) THESE RULES AMEND ORDER 84, RULE 22 AND RULE 27 OF THE RULES OF THE SUPERIOR COURTS TO PRECLUDE A JUDGE BEING NAMED AS A RESPONDENT OR NOTICE PARTY IN THE TITLE TO JUDICIAL REVIEW PROCEEDINGS IN RESPECT OF THAT JUDGE’S DECISION UNLESS THE RELIEF SOUGHT THEREIN IS GROUNDED ON AN ALLEGATION OF MALA FIDES SUCH AS WOULD DEPRIVE THE JUDGE OF IMMUNITY FROM SUIT; TO REQUIRE THAT THE PARTY OR PARTIES TO THE ORIGINAL PROCEEDINGS BE NAMED AS RESPONDENT OR RESPONDENTS, AND TO ENABLE THECOURT IN JUDICIAL REVIEW PROCEEDINGS TO DIRECT PRODUCTION TO IT OF THE RECORD OF COURT PROCEEDINGS TO WHICH THE JUDICIAL REVIEW PROCEEDINGS RELATE.

SIGNIFICANT “RECENT” CASES

BABINGTON V. MINISTER FOR JUSTICE &LAW REFORM &ORS. [2012] IESC 65 (PLEADING); SB V. CHILD AND FAMILY AGENCY [2017] IEHC 50 (PLEADING); FARRELL V. GOVERNOR OF ST. PATRICK’S [2014] IR 699 (EFFECT OF A STAY IN JUDICIAL REVIEW PROCEEDINGS); JC V DPP [2016] IECA 183 (ARGUABILITY – THE THRESHOLD FOR LEAVE); CASE C-495/15 DANQUA V. MINISTER FOR JUSTICE (NO. 2)[2016] IECA 20 (TIME LIMITS)

DUNNES STORES V. DUBLIN CITY COUNCIL [2016] IEHC 724 (CROSS-EXAMINATION IN JUDICIAL REVIEW); DN V. CHIEF APPEALS OFFICE, MINISTER FOR JUSTICE AND EQUALITY, AG AND IRELAND THE MINISTER FOR SOCIAL PROTECTION (ADMINISTRATIVE DELAY); GRACE AND ANOR -V-AN BÓRD PLEANÁLA & ORS [2017] IESC 10, 2/24/2017 (THERE NOW IS, AT LEAST POTENTIALLY, AN APPEAL TO THE SUPREME COURT EVEN IN SO-CALLED CERTIFICATE CASES (I. E. CASES WHERE, A CERTIFICATE OF THEHIGH COURT WOULD ORDINARILY BE REQUIRED) PROVIDED THAT THE CONSTITUTIONAL THRESHOLD IS MET); NM (DRC) V. MINISTER FOR JUSTICE [2016] IECA 217, [2016] 2 (CANNOT APPLY O'KEEFE TEST IN EU RELATED MATTERS) ILRM 369

PLEADINGS - STATEMENT OF GROUNDS BABINGTON V. MINISTER FOR JUSTICE AND LAW REFORMS &ORS. [2012] MCMENAMIN J STATED (PARAGRAPH 7): “REGRETTABLY, THESE EXPLICIT STIPULATIONS ARE FREQUENTLY NOT COMPLIED WITH, AND THE SAME GROUNDS ARE SET OUT IN AS MANY DIFFERENT, VARYING, (AND WEARYING) REFORMULATIONS OF THE SAME POINT AS CAN BE CONCEIVED. PRACTITIONERS SHOULD REALISE THAT, IN THIS ENTIRELY COUNTERPRODUCTIVE AND UNNECESSARY PROCESS, THERE IS A REAL RISK OF NOT BEING ABLE TO SEE THE WOOD FOR THE TREESA . GOOD POINT DOES NOT GAIN FORCE BY REPETITION. IN FACT, THE CONTRARY IS TRUE. WHAT IS REQUIRED IS SIMPLY A SUCCINCT STATEMENT OF THE GROUNDS. IT IS OPEN TO AN APPLICANT TO FURNISH PARTICULARS OF EACH GROUND SO AS TO ENSURE THAT THE COURT WILL BE AWARE OF THE PRECISE DETAILS OF THE CASE. WHAT IS NOT REQUIRED, HOWEVER, IS THAT EACH GROUND SHOULD BE REFORMULATED IN A NUMBER OF DIFFERENT WAYS. ONCE THE PRECISE GROUNDS ARE SET OUT, SUCCINCTLY, PRACTITIONERS SHOULD THEN, SIMPLY SET OUT AND IDENTIFY IN RESPECT OF EACH GROUND, "THE FACTS OR MATTERS RELIED UPON AS SUPPORTING THAT GROUND". THUS, NO MATERIAL ISSUE WILL BE OMITTED. ”

PLEADINGS - STATEMENTS OF OPPOSITION SB V. CHILD AND FAMILY AGENCY [2017] IEHC 50, EAGAR J. “ 62. THE ONUS IS NOT ON THE PLAINTIFF OR THEC OURT TO LOOK TO MYRIAD LETTERS IN AN ATTEMPT TO ASCERTAIN WHAT THE RESPONDENT’S POSITION IS. IT IS THE RESPONDENT’S DUTY TO SET OUT THE INFORMATION THEY SEEK TO RELY ON IN THE ‘FRESH’ ASSESSMENT WITH CLARITY AND PRECISION…. . 63. THE CURRENT FRAMING OF THE STATEMENT OF OPPOSITION HAS LEAD TO UNNECESSARY PROLONGING OF PROCEEDINGS, WHERE THEC OURT HAS HAD TO ENGAGE IN A REVIEW OF LENGTHY CORRESPONDENCE, OFTEN CONTRADICTORY AND CONFUSING. THIS IS AN INAPPROPRIATE TASK FOR THE COURT, AND A WASTE OF TIME AND RESOURCES. THE RESPONDENT’S POSITION SHOULD BE STATED CLEARLY ON AFFIDAVIT EVIDENCE. ”

EFFECT OF A “STAY” IN JUDICIAL REVIEW PROCEEDINGS FARRELL V. GOVERNOR OF ST. PATRICK’S [2014]IR 699 (DENHAM CJ) “[63] CONSEQUENTLY, THE GRANTING OF A STAY BY THEH IGH COURT ON AN APPLICATION FOR JUDICIAL REVIEW POSTPONES OR SUSPENDS THE PROCEEDINGS RELATING TO THE CRIMINAL TRIAL, THE SUBJECT OF AN APPLICATION FOR JUDICIAL REVIEW, BUT IT DOES NOT TERMINATE THE PROCEEDINGS, OR MEAN THAT AD ISTRICT COURT JUDGE COULD NOT CONTINUE TO MAKE ORDERS WHILE THE PROCEEDINGS ARE SUSPENDED, SUCH AS TO REMAND AN ACCUSED IN THE CIRCUMSTANCES, PROVIDED THAT ANY SUCH ORDERS ARE REQUIRED TO MAINTAIN THE PROCEEDINGS IN BEING AND ARE NOT CONTRARY TO THE STAY. THUS, THE DISTRICT COURT CONTINUED TO HAVE JURISDICTION TO MAKE SUCH AN ORDER, PENDING THE DETERMINATION OF THE APPLICATION FOR JUDICIAL REVIEW. ”

ARGUABILITY – THE THRESHOLD FOR LEAVE JC V DPP [2016] IECA 183 “ 36. IT IS EVIDENT FROM THE JUDGMENT OF THE LEARNED TRIAL JUDGE THAT HE DETERMINED THE APPLICATION FOR LEAVE ON THE BASIS THAT IT WAS A FULL HEARING OF THE APPLICATION FOR JUDICIAL REVIEW, IN EFFECT, THE APPLICATION FOR THE PROHIBITION OF THE PROSECUTION OF THE APPELLANT IN RELATION TO THE TWO COUNTS IN QUESTION. HOWEVER, THE MATTER WHICH REQUIRED A DETERMINATION WAS MERELY THE APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW. 37. ON THE BASIS OF THE GROUNDS PRESENTED TO THEH IGH COURT, I AM SATISFIED THAT THE APPELLANT SATISFIES THE MATTERS IDENTIFIED BYF INLAY C. J. IN G AND WHICH MUST BE PRIMA FACIE ESTABLISHED BEFORE LEAVE IS GRANTED. IN PARTICULAR, I AM SATISFIED THAT: - (I) THE FACTS AVERRED IN THE AFFIDAVIT OFM R. O’CONNOR WOULD BE SUFFICIENT, IF PROVED, TO SUPPORT A STATEABLE GROUND FOR THE FORM OF RELIEF SOUGHT BY WAY OF JUDICIAL REVIEW; AND (II) THAT ON THOSE FACTS AN ARGUABLE CASE IN LAW CAN BE MADE THAT THE APPLICANT IS ENTITLED TO THE RELIEF WHICH HE SEEKS. ”

REGARDING CHANGES IN TIME LIMITS SEE: S. 34 OF THEEMPLOYMENT PERMITS ACT 2014 (AMENDINGILLEGAL IMMIGRANTS ACT 2000 ACT AND EXTENDING TIME LIMITFROM 14 DAYS TO 28 DAYS)

CASE C-495/15 DANQUA V. MINISTER FOR JUSTICE (NO. 2) [2016] IECA 20. THE COURT OF JUSTICE HELD UNAMBIGUOUSLY THAT THE 15 WORKING DAY TIME LIMIT GOVERNING APPLICATIONS FOR SUBSIDIARY PROTECTION VIOLATED THEEU PRINCIPLE OF EFFECTIVENESS. “ACCORDINGLY, IT MUST BE HELD THAT A NATIONAL PROCEDURAL RULE, SUCH AS THAT AT ISSUE IN THE MAIN PROCEEDINGS, IS CAPABLE OF COMPROMISING THE ABILITY OF APPLICANTS FOR SUBSIDIARY PROTECTION ACTUALLY TO AVAIL THEMSELVES OF THE RIGHTS CONFERRED ON THEM BY DIRECTIVE 2004/83. ” IN LIGHT OF THE DECISION OF THECOURT OF JUSTICE, HOWEVER, HOGAN J. ON BEHALF OF THE COURT, HELD THAT THECOURT WAS OBLIGED TO SUSPEND THE OPERATION OF THE 15 DAY RULE. “…. IT SEEMS TO ME THAT THIS COURT IS ENTIRELY BOUND TO APPLY THAT DECISION AS PART OF ITS DUTY OF SINCERE CO-OPERATION WITH THECOURT OF JUSTICE AS AN INSTITUTION OF THE EUROPEAN UNION IN THE MANNER PROVIDED FORARTICLE 4(3)TEU. ”

CROSS-EXAMINATION IN JUDICIAL REVIEW DUNNES STORES V. DUBLIN CITY COUNCIL [2016] IEHC 724, JUDGMENT OF MR JUSTICE MAX BARRETT DELIVERED ON 16 THDECEMBER, 2016. BARRETT J. EXTRAPOLATED FROM ENGLISH CASES THAT THE REASONS IDENTIFIED FOR JUSTIFYING REFUSAL OF CROSS EXAMINATION IN JUDICIAL REVIEW PROCEEDINGS WERE: WANT OF NECESSITY, ENGAGING IN A SO-CALLED “FISHING EXPEDITION”, AND THE NEED TO AVOIDABLE DELAY, THE NATURE OF PROCEEDINGS BEING ‘ESSENTIALLY A REVIEW OF OFFICIAL DECISION-MAKING.

HE THEN SAID: “ 16. IT MAY BE THAT THERE IS POSSIBLY A DEGREE OF LAXITY IN THEIRISH LEGAL SYSTEM, AS COMPARED WITH THAT OF THE NEIGHBOURING JURISDICTION, WHICH RENDERS THE ADDUCING OF ORAL EVIDENCE IN JUDICIAL REVIEW PROCEEDINGS SOMEWHAT LESS THAN ‘ EXCEPTIONAL ’ IN PRACTICE IN IRELAND, ALBEIT THAT NO THEORETICAL RATIONALE FOR SUCH DIFFERENCE, TO THE EXTENT THAT IT ARISES, APPEARS TO HAVE BEEN OFFERED THUS FAR IN THE CASE-LAW OF THE IRISH SUPERIOR COURTS. ” RATIO: BE CAUTIOUS THAT THE APPLICATION IS BASED ON A CONFLICT OF FACT WHICH IS RELEVANT OR MATERIAL TO AN ISSUE WHICH IT IS APPROPRIATE TO THECOURT TO RESOLVE IN JUDICIAL REVIEW PROCEEDINGS. THE LIMITATION FLOWS FROM THE NATURE OF JUDICIAL REVIEW PROCEEDINGS AND THE ROLE OF THECOURT IN JUDICIAL REVIEW PROCEEDINGS IN NOT STEPPING INTO THE SHOES OF THE DECISION MAKER.

DN V. CHIEF APPEALS OFFICE, MINISTER FOR JUSTICE AND EQUALITY, AG AND IRELAND THE MINISTER FOR SOCIAL PROTECTION, WHITE J. , 3 RD OF FEBRUARY, 2017 “ADMINISTRATIVE AUTHORITIES SHOULD BE CONSCIOUS OF THE LENGTH OF TIME APPLICANTS SEEKING ASYLUM IN THIS COUNTRY SPEND IN DIRECT PROVISION WHETHER BY WAY OF SEEKING REFUGEE STATUS, SUBSIDIARY PROTECTION OR OTHER CONSENT MECHANISMS. THE DIRECT PROVISION SYSTEM. ” HOWEVER VERY LENGTHY PERIODS IN DIRECT PROVISION ARE UNDESIRABLE. “IF AN APPLICANT FOR REFUGEE STATUS OR SUBSIDIARY PROTECTION OR OTHER APPLICATION TO REMAIN IN IRELAND IS IN DIRECT PROVISION FOR A VERY LENGTHY PERIOD OF TIME, IT IS INCUMBENT ON THE SECOND RESPONDENT TO ENSURE THAT THEIR APPLICATIONS ARE PROCESSED WITHIN A REASONABLE TIME. ”

GRACE AND ANOR -V-AN BÓRD PLEANÁLA & ORS[2017] IESC 10, 2/24/2017 CLARKE & O’MALLEY JJ. : “THAT PROVISION MUST BE SEEN IN THE LIGHT OF THE FACT THAT, IN ORDER TO OBTAIN LEAVE TO APPEAL TO THIS COURT UNDER THE NEW REGIME, IT IS NECESSARY THAT THISC OURT BE SATISFIED THAT A GENERAL ISSUE OF PUBLIC IMPORTANCE ARISES OR THAT THE INTERESTS OF JUSTICE REQUIRE AN APPEAL TO THISC OURT. THE DELIBERATE OMISSION, IN THE CONSTITUTIONAL AMENDMENT PASSED BY THE PEOPLE, OF AN ENTITLEMENT ON THE PART OF THE OIREACHTAS TO EXCLUDE AN APPEAL TO THISC OURT UNDER THE NEW REGIME HAS TO BE SEEN IN THAT CONTEXT. WOULD IT HAVE BEEN APPROPRIATE TO ALLOW THEO IREACHTAS TO PREVENT AN APPEAL COMING TO THISC OURT EVEN THOUGH THIS COURT WAS SATISFIED THAT THE CASE RAISED AN ISSUE OF GENERAL PUBLIC IMPORTANCE OR THAT THE INTERESTS OF JUSTICE REQUIRED AN APPEAL? BUT IT SEEMS TO US TO FOLLOW THAT ANY MEASURE WHICH PREVENTS (RATHER THAN REGULATES) THE EXERCISE BY THISC OURT OF ITS ENTITLEMENT, UNDER THE 33 RDA MENDMENT, TO CONSIDER WHETHER A CASE MEETS THAT CONSTITUTIONAL THRESHOLD MUST BE CONSIDERED TO BE AN IMPERMISSIBLE EXCLUSION OF THE RIGHT OF APPEAL TO THIS COURT. NO EXPRESS RELEVANT MEASURE HAS BEEN INTRODUCED SINCE THE 33 RD AMENDMENT. PRECISELY WHAT FORM OF MEASURE MIGHT BE CONSIDERED AN EXCLUSION RATHER THAN A REGULATION DOES NOT, THEREFORE, FALL FOR CONSIDERATION IN THIS CASE. ”

IMPACT OF EC LAW ON IRISH JUDICIAL REVIEW NM (DRC) V. MINISTER FOR JUSTICE [2016] IECA 217, [2016] 2 ILRM 369 (CANNOT APPLY O'KEEFE TEST IN EU RELATED MATTERS) ISSUE IN THE APPEAL THE ESSENTIAL ISSUE ON THIS APPEAL IS WHETHER THE PROCEDURES PROVIDED IN THE 2011 REGULATIONS CONSTITUTE AN ADEQUATE TRANSPOSITION OF THEARTICLE 39(1)(C) OF THE PROCEDURES DIRECTIVE. THE MINISTER CONTENDED THAT IT WAS THE AVAILABILITY OF THE REMEDY OF JUDICIAL REVIEW TO QUASH ANY REFUSAL TO RE-ADMIT AN APPLICANT TO THE ASYLUM PROCESS WHICH CONSTITUTES THE EFFECTIVE REMEDY FOR THE PURPOSES OF ARTICLE 39(1)(C).

NM (DRC) V. MINISTER FOR JUSTICE THE JUDGMENT OF THE HIGH COURT IN HIS JUDGMENT IN THEHIGH COURT BARR J. FOUND THAT THE AVAILABILITY OF JUDICIAL REVIEW DID NOT SATISFY THE REQUIREMENTS OF AN EFFECTIVE REMEDY FOR THE PURPOSES OF ARTICLE 39 BECAUSE OF THE FOLLOWING LIMITATIONS:

THE COURT CANNOT REVERSE THE EARLIER DECISION AND SUBSTITUTE ITS OWN FINDINGS OF FACT ON THE SUBSTANTIVE ISSUES; THE COURT CAN ONLY ANNUL THE EARLIER DECISION AND REMIT THE MATTER BACK TO A DIFFERENT DECISION MAKER FOR FURTHER CONSIDERATION; THE COURT CANNOT LOOK AT MORE UP TO DATE COUNTRY INFORMATION. IT IS CONFINED TO A CONSIDERATION OF THE INFORMATION THAT WAS BEFORE THE DECISION MAKER AT THE TIME HE MADE THE DECISION UNDERREVIEW; THE COURT CAN ONLY REVIEW THE PROCESS LEADING TO THE IMPUGNED DECISION, RATHER THAN REVIEW THE MERITS OF THE DECISION ITSELF; THE COURT IS NOT AN APPEAL COURT AND IS NOT FREE TO SUBSTITUTE ITS OWN SUBSTANTIVE FINDINGS FOR THOSE OF THE DECISION MAKER. IF DISSATISFIED WITH THE DECISION MADE AN APPLICATION TO COURT MAY ONLY BE BROUGHT IF THE APPLICANT CAN POINT TO SOME FAULT IN THE DECISION MAKING PROCESS ON THE PART OF THE DECISION MAKER. SHE CANNOT SIMPLY APPEAL TO THEHIGH COURT; THE COURT CANNOT REVERSE THE DECISION OF THE DECISION MAKER; IT CAN ONLY ANNUL ITSDECISION; THE COURT CAN ONLY INTERFERE IF IT IS SATISFIED THAT THERE WAS AN ERROR OF LAW, OR AN ERROR OF FACT ON THE FACE OF THE RECORD, OR THERE WAS SOME UNFAIRNESS IN THE PROCEDURE ADOPTED OR IF THE DECISION WAS IRRATIONAL IN THAT THERE WAS NO EVIDENCE SUPPORTING THE FINDING MADE BY THE DECISION MAKER.

NM (DRC) V. MINISTER FOR JUSTICE COURT OF APPEAL HOGAN J. ON BEHALF OF THE COURT CONSIDERED IN SOME DETAIL THE LEADING DECISION OF THE COURT OF JUSTICE IN RESPECT OF THE PROPER INTERPRETATION OFARTICLE 39 CASE C-69/10 DIOUF. REFERRING TO BARR J’S REASONS FOR CONSIDERING JUDICIAL REVIEW NOT BE AN EFFECTIVE REMEDY, HOGAN J. STATED: “ 53. ALL OF THIS IS IN ITS OWN WAY TRUE. BUT, PERHAPS, WITH RESPECT, THIS PASSAGE MAY BE THOUGHT TO UNDERPLAY THE SCOPE OF CONTEMPORARY, POST- MEADOWS JUDICIAL REVIEW. WHILE THE JUDICIAL REVIEW COURT CANNOT REVIEW THE MERITS OF THE DECISION, IT CAN NONETHELESS QUASH FOR UNREASONABLENESS OR LACK OF PROPORTIONALITY (AS IN MEADOWS ) OR WHERE THE DECISION SIMPLY STRIKES AT THE SUBSTANCE OF CONSTITUTIONAL OR EU RIGHTS: SEE, E. G. , S. V. MINISTER FOR JUSTICE [2011] IEHC 92; O'LEARY V. MINISTER FOR JUSTICE [2012] IEHC 80. THE COURT CAN FURTHER EXAMINE THE CONCLUSIONS REACHED AND ENSURE THAT THEY FOLLOW FROM THE DECISION-MAKER'S PREMISES. THE COURT CAN FURTHER QUASH FOR MATERIAL ERROR OF FACT. ”

HOGAN J. ADDED: “ 56. I ACCEPT THAT THE “NO RELEVANT MATERIAL” STANDARD PRESCRIBED BY THE SUPREME COURT IN O'KEEFFE WOULD NOT SATISFY THED IOUF REQUIREMENTS, SINCE IN PRACTICE IT WOULD NOT BE POSSIBLE TO SUBJECT THE REASONS GIVEN BY THE DECISION MAKER TO A “THOROUGH REVIEW” BY THE JUDICIAL REVIEW JUDGE IF THAT WERE INDEED THE APPLICABLE TEST. NEVERTHELESS, FOR THE REASONS ESSENTIALLY SET OUT BYC OOKE J. IN ISOF AND BY ME AS A JUDGE OF THEH IGH COURT IN EFE , I CONSIDER THAT O'KEEFFE TEST CAN NO LONGER BE APPLIED TO JUDICIAL REVIEW APPLICATIONS IN ASYLUM MATTERS SUCH AS THE PRESENT ONE IN WHICH THE PROTECTION OF EITHER CONSTITUTIONAL RIGHTS OREU LAW RIGHTS ARE ENGAGED. THE SUPREME COURT HAS, IN ANY EVENT, MADE THIS CLEAR: THIS, AT LEAST, IS THE CLEAR IMPLICATION OF MAJOR POST- O'KEEFFE DECISIONS SUCH AS CLINTON AND MEADOWS . EVEN IF THAT WERE NOT SO, THISC OURT'S DUTY OF LOYAL CO-OPERATION WITH THE REQUIREMENTS OF EU LAW WOULD, IN ANY EVENT, REQUIRE US TO ENSURE THAT OUR DOMESTIC LAW OF JUDICIAL REVIEW IS REMOULDED IN THIS MANNER IN ORDER TO ACCOMMODATE THE REQUIREMENTS OF ARTICLE 39. 1. ”