The Public Interest Law Unit specialises in judicial review:
What is a Judicial Review?
A Judicial Review is a legal procedure by which the courts examine the lawfulness of a decision made, or action taken by a public body. Sometimes the court will also look at the failure to make a decision or failure to take action. It is important to remember that it is only available if there is no other means of challenge or all other appeal steps have been exhausted.
Judicial Review is legal means by which the court will consider, has the public body ac
ted in line with its legal requirements and responsibilities? If the court establishes that the public body has failed in its legal duty then it can declare that the decision taken is unsound.
Judicial Review primarily considers the decisions of public bodies and can be a very powerful means of holding them to account. It is powerful because the decision of the Court must be followed, and in many cases a positive Judicial Review decision against a public body can positively affect many other people. The court however has limited powers to award financial compensation.
Challenging decisions of public bodies.
Decisions made by public bodies can be challenged by way of Judicial Review. Those public bodies can include:
• Government ministers and departments – eg: DWP; MOD; etc.
• Local authorities and local NHS trusts – involving cuts in services.
• Chief constables and prison governors
• Maintained schools and school governing bodies
• Magistrates, coroners and county courts
• Regulatory and supervisory bodies – eg: Monitor, Care Quality Commission,
Increasingly public bodies have devolved their functions to other agencies and bodies. Generally, and in most cases they will still be governed by public law if they are commissioned to operate by an Act of Parliament or in principle can be seen as formerly carrying out an authorised public function.
Can you bring a Judicial Review?
In order to bring a public law challenge by way of Judicial Review to a decision of a public body you must have ‘standing.’ To have ‘standing’ there must be a close connection to the decision or the subject matter itself.
So for instance in the case of cuts to local authority provision, if the claim was brought by a service user that would provide sufficient standing.
Is there enough time?
To bring a Judicial Review it is necessary to move promptly. The maximum time limit of 3 months – but in reality an application should be made as soon as possible. The court is not best happy with delay – even if it is within the 3 month time limit. So the best advice is to act promptly.
What are the Grounds for bringing a Judicial Review?
Decisions by public bodies can be challenged in a number of ways:
- the public body does not have the power to make a particular decision, or
- the public body has used a power which it does have for an improper purpose;
- the decision is irrational or disproportionate;
- the procedure followed by the public body is unfair, biased or is part of a ‘blanket policy’;
- the decision taken is in breach of the Human Rights Act;
- the decision taken is in breach of European Community Law;
- the public body failed to comply with one of its legal duties, for example, the public sector equality duties.
Some of the principles are outlined below:
Illegality: Public bodies must apply the law that regulates their decisions and actions. It must not only understand the law but apply it properly. It cannot take into account irrelevant factors and when making a decision ignore relevant factors.
Irrationality/Proportionality: It is unlawful for a public body to issue decisions which are unreasonable or irrational. In the case of Wednesbury this was famously stated to be, “so unreasonable that no reasonable authority could ever have come to it.” Only then could “the Courts interfere… but to prove a case of that kind would require something overwhelming.”
Proportionality is a further developing principle of public law. Here a public body in order to act proportionally must undertake a balancing exercise between the legitimate aims of the state and the rights of the individual. The test is applied under European Law or the Human Rights Act.
Unfairness: Public bodies must not act unfairly. They must not abuse their power. They must follow the law, their policies and procedures. Fairness also demands that in most circumstances the public body gives reasons for its decisions. The public body must be impartial and has a duty to consult before a decision is made. A public body must keep its promises, unless there are good reasons not to – otherwise this good give rise to a ‘legitimate expectation.’
We are happy to discuss you case with you and the steps that need to be taken to get the case running.