Judicial Review (JR) is a very particular type of court proceeding which adjudicates on the decision-making process of public bodies. It does not adjudicate on the actual decision of the public authority i.e. whether the decision was a ‘good’ or ‘bad’ one, or ‘right’ or ‘wrong’. It simply looks at how the decision was reached.
The process for JR is not straightforward. The court must grant leave to apply for judicial review, and this will only be granted if the applicant has ‘sufficient interest’.
There is no hard and fast rule as to what qualifies as ‘sufficient interest’, but the court will look at all the circumstances, such as the importance and strength of the grounds of challenge, to what extent the applicant is affected by the decision, and whether there is an alternative remedy available.
JR is a remedy of last resort, and the court will not look favourably on applicants who have not tried to solve their issues through other means first.
What are the grounds for JR?
There are three main grounds: illegality, irrationality, procedural unfairness. Breaches of human rights can also give rise to JR
A public body is considered to act ‘illegally’ if it acts outside of its powers. This is also known as ‘ultra vires’. The public body may also not have understood and applied the law correctly, or it exercised a power wrongly or for an improper purposes.
‘Irrationality’ is a high barrier to cross. The public body must have acted ‘so unreasonably that no reasonable person acting reasonably could have made it’ (Wednesbury reasonableness). There are two stages to this test.
The first is to consider whether the public body took into account matters which it ought not to have done, or it did not consider matters it should have.
The second is, even if the public authority considered all the factors it should have done, the conclusion they reached was so outrageous it should not be allowed to stand. The second limb is the hurdle for the applicant, as the public body are given a wide discretion.
Procedural impropriety comes into play if the public body does not comply with procedural duties, such as failing to set out reasons for its decision or shows bias. This could include issues regarding failure to consult or showing favouritism to one party due to personal financial interest.
What sort of decisions are suitable for judicial review?
- Decision of local authorities in the exercise of their duties and functions.
This is wide-ranging, from providing benefits, the opening or closing of libraries to the provision of adult social care.
- Certain decision of the immigration authorities
- Decision of regulatory bodies
- Decisions in relation to prisoners, such as those of the parole board.
- Planning permission cases
In recent history, the most famous example of judicial review is when the Supreme Court held that the Prime Minister Boris Johnson unlawfully closed down Parliament in September 2019.
Importantly, JR cannot be used to overturn entire Acts of Parliament.
It is worth noting that there are strict time limits for JR. Claims must be brought ‘promptly’ and in any event within 3 months from the date of decision, or, in the case of planning permission cases, within 6 weeks from the date of decision
What is the effect of judicial review?
There are four main remedies:
The most common remedy from judicial review is a ‘quashing order’. This makes the original decision completely invalid and void (as if it had never existed). The original decision maker is directed to make the decision again in light of the court’s judgement.
The court may, very rarely, made the decision itself, if it deems there is no purpose in sending the decision back to relevant public body.
These are orders preventing a tribunal or authority from acting in a certain way. While quashing orders are retrospective, these are prospective.
This is when the court sets out, or ‘declares’, the respective rights of each party in the proceedings, but does not make any order as to what they should, or should not, do.
These can still be useful: if the public body is to ignore the declaration, the applicant has the other remedies available
Compensation is not common in JR, but is available only if there is a ‘civil law’ cause of action such as negligence of breach of statutory duty, or when there is a human rights claim.
…Or Nothing At All?
The remedies for JR are discretionary, so that even if the public body is thought to have acted wrongly, the court is not obliged to administer any remedy.
Changes on the horizon
The Judicial Review and Courts Bill was published on 21 July 2021 under the guise of ‘procedural improvements across the court system’. It is currently on its second reading in Parliament.
What does this mean for judicial review?
The headline change is that it will no longer be possible to have judicial review against a decision of the Upper Tribunal refusing permission for an applicant to challenge a decision of the First-Tier Tribunal (known as Cart JRs). This change is enacted through modification to section 11 of the Tribunals, Courts and Enforcement Act 2007.
This is significant as the cases which concern the Upper Tribunal often relate to immigration, and the final appeal was often used as a ‘last-ditch’ attempt to remain in the UK. The Independent Review of Administrative Law, led by Lord Faults QC, held this was justified on the basis that only 0.22% of cases for Cart JR were successful . However, this figure has been doubted by academics in the field.
In addition, the effect of quashing orders may change (amendment to s29 Senior Courts Act 1981). There may now be a provision for the quashing order not to take effect until a specified date, and, more significantly, the retrospective effect of the order may be removed or limited. The main benefit appears to be in favour of the government of the day: it allows them allowed time to rectify policy errors if the quashing order date is postponed.