Judicial Review is where the courts determine whether or not a public authority's decision is lawful. It is a way to challenge how a public organisation carries out their public function and is used to ensure that the public body does not exceed the powers given to it by the law.
Any organisation that exercises a public function can have its decision scrutinised (on application) by Judicial Review by the High Court. Judicial Review is used to assess the actual decision that has been made – focussing solely on the decision-making process. It is only to be enforced as a last resort where all other avenues to resolve any grievances or concerns have been tried. If there is no other option and the organisation is shown to have acted illegally, unreasonably or unfairly, then the court can opt to set aside the decision or make the organisation do something to make up for the error.
The court does not review the merits of the actual decision; it is only reviewing the legality of the decision in relation to whether the correct procedures have been followed. Where this is not the case - the public authority may have been deemed to have acted unlawfully - then there may be grounds to quash or nullify the decision.
The Judicial Review Process
Judicial Review involves the courts reviewing the decisions of public bodies, such as:
- Local government;
- Central government;
- Social services;
- Local health authorities;
- Trading standards;
- Some housing organisations; and,
- Private organisations that carry out a public function, such as private hospitals and private schools.
Judicial Review proceedings should be issued within three months of the date of the decision that is to be challenged. If there are various decisions or appeals, it can be difficult to determine the beginning date, and that is why it is crucial to challenge any decision as soon as you can.
It is only possible for a legal person with sufficient interest in the decision or act to apply for Judicial Review once the court has given its permission. This is the first stage where the court decides if there is an arguable case. Only if this is verified, will the court grant permission. It must be proven to the court that there is "sufficient interest" in the matter to merit the court’s involvement. There are various factors that the court will consider in making its decision:
- Have all other options been considered (for example, appeals) before resorting to Judicial Review?
- There must be evidence of the personal rights of the person applying having been affected.
- The issue must be important enough to require the court becomes involved.
Once permission is granted, an application can then be made to bring a claim for Judicial Review. At this stage, the arguments are considered and the court reaches a decision as to whether the claim should succeed. The applications can be very diverse, as can the remedies that are being sought.
The application must be based on one of the following grounds:
Error in law
This is a broad category and applies where a public authority acted without the legal ability or power to do so or for improper purposes. A public authority cannot act outside of the powers given to it by legislation. The organisation must not delegate its discretion to make decision improperly or use its powers for purposes that it was not intended.
This applies where the public authority did not adhere to procedural requirements or breached Convention rights. Public Authorities in the UK must act fairly and without bias (either actual or suspected). The court needs to be persuaded that there is a real risk of a decision being biased.
This ground can also be used where there is a complaint that a public authority had promised to perform in a certain way but then failed to do so. In this case, it may be possible to apply for Judicial Review where there was a legitimate expectation that a particular course of action was to be followed.
Irrationality or unreasonableness
This is the most popular ground for a Judicial Review challenge and occurs where there is unfairness in the decision-making process that is so unreasonable as to be sustainable. It can also be used where there has been an abuse of power. It applies where the decision-making process was so unreasonable or irrational that it would not have been reached or executed by a reasonable decision-maker. The court will only accept this as a valid ground where there is clear evidence that no sensible person would have come to the same conclusion.
It is very difficult to prove irrationality or unreasonableness. The courts will only consider the decision-making process rather than the actual decision. It is not enough to show that the decision is unreasonable - it must be shown that the decision was completely outside of what is considered as reasonable.
Breach of Convention rights
This applies where the organisation has breached the requirement to act in such a way as is compatible with the rights under the European Convention of Human Rights (ECHR).
Specialist Administrative Law and Judicial Review Lawyers in London
Administrative Law is a very complicated area, and the process of applying for and carrying out a Judicial Review can be very time consuming and stressful. 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 Law, 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.