The ability to challenge a decision made by someone that has an impact on us is very important in life. In the private world, e.g. in a business, it is not unusual that one employee may challenge the decision of one of their colleagues, which may then result in the thinking behind a given decision being subject to review. However many people believe that there is no such option if they are impacted by a decision that is made in the public sphere. This is simply not true.
Here we provide an overview of the way in which decisions made by organisations operating in the public realm can be challenged and what this will involve.
What is administrative law?
Administrative law is the law that relates to decisions made by administrators of the state: it relates to the actions and decisions of organisations that carry out some kind of ‘public function’i.e. a function that the general public benefit from. The main tool that administrative law uses to exercise a check on the actions of bodies that exercise a public function is called Judicial Review.
Judicial Review is the name of a procedure where the courts, on application, will review the process that an organisation has taken in making a decision or taking action.
An important point about Judicial Review is that it cannot be used to review the actual decision that has been made. Instead, as mentioned above, it focuses on the decision-making process.
Who can be judicially reviewed?
A decision made by an organisation in relation to their public function can be judicially reviewed. Public function is quite a broad category and will include public bodies, such as those emanating from national or local government, as well as private organisations that carry out a public function, such as private hospitals and private schools.
When deciding whether a decision-maker was exercising a public function, and therefore amenable to judicial review, the court will take into consideration not only the kind of organisation concerned, but also whether they are operating under any legislation and whether or not the organisation is particularly dominant in an industry or area.
Who can apply for a Judicial Review?
Any legal person who has a sufficient interest in the decision or act is entitled to apply for Judicial Review. However Judicial Review is unique in that you can only apply for it after the court has given its permission. You will need to demonstrate to the court, in asking for permission, that there is ‘sufficient interest’in the matter to merit the courts involvement. The courts will take many things into consideration in deciding whether or not sufficient interest has been demonstrated, including:
- Evidence of alternative options
Judicial Review will only be used as a last resort. Historically the courts have not granted permission to apply for Judicial Review if there is evidence that there are alternative options e.g. appeals procedures available that have not been used.
The courts will need some kind of evidence that you are impacted by a decision that you are attempting to Judicial Review e.g. evidence that your personal rights have been affected.
- Evidence of importance
Before a court will grant its permission for you to apply for Judicial Review, it will need to be convinced that the issue is important enough to warrant the courts involvement e.g. a local authority abusing its powers.
What are the reasons for applying for Judicial Review?
If you are successful in being granted permission to bring a claim for Judicial Review, you must then set out your reasons for your application, which must be based on one or more of the following three grounds:
The most obvious reason you may wish to challenge the decision or action is for reasons of illegality: you have evidence that the body has done something that it is not entitled to do.
Illegality is quite a broad category. It will include decisions that organisations make for improper purposes, or made when purporting to act under a power that it does not have in law.
- Irrationality or Unreasonableness
Alternatively you may have evidence of irrationality or unreasonableness during the decision-making process. This tends to be the most well-known grounds of challenge.
The important point is that a court will only take an application for Judicial Review based on on this ground if there is evidence that the decision complained of is one that is so outrageous that no sensible person would have taken it.
It can be difficult to prove irrationality or unreasonableness. The courts will only concern themselves with the way that a decision was taken, and not the actual decision itself.
- Procedural Impropriety
The other reason that you could apply for Judicial Review is for Procedural Impropriety. In the UK it is important that those carrying out public functions act fairly and that their decisions are free from any suspected or actual bias. The courts will need to be convinced that, having reviewed all of the information surrounding a decision, there is a real risk of a decision being biased.
The courts will also be interested in a complaint of Procedural Impropriety if there is evidence that an organisation promised to act in a particular way but failed to do so. If you had a legitimate expectation that an organisation would pursue a particular course of action, which wasn’t met, you may be able to pursue a Judicial Review.
The important point about Judicial Review is that it is designed to be used as a last resort. The courts themselves do not like getting involved in decisions if there is a more suitable avenue for grievances or concerns to be addressed.
However, if there is any evidence that an organisation has acted illegally, unreasonably or unfairly in making a decision, then the courts will decide whether the decision is to be set aside, or whether the organisation needs to do something else to make up for its error.
Specialist Administrative Law and Judicial Review Lawyers
Administrative Law is a very complicated area, and the process of applying for and carrying out a Judicial Review can be very long. It involves a great deal of paperwork and will involve engaging with lots of different people, some of whom you may not be familiar with.
At Lewis Nedas, we have a team of expert Administrative lawyers who have a great deal of experience in handling Judicial Reviews. We will be happy to meet with you and discuss any concerns you have, and any scope to challenge the decisions of a public body. If you have any questions on what Judicial Review involves, or perhaps are already concerned that you may need to bring a matter to the courts attention now, please contact us.