Judicial Review

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what is judicial review ?

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Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.
In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.
It is not really concerned with the conclusions of that process and whether those were 'right', as long as the right procedures have been followed. The court will not substitute what it thinks is the 'correct' decision. This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way

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Who does the judicial reviewing?

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Judicial review is carried out by the High Court—specifically, the Administrative Court which is part of the Queen’s Bench Division of the High Court.

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Who may be judicially reviewed?

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Any public body except:
-Senior Courts with inherent jurisdiction;
-Parliament


Some bodies which are not public bodies but who carry out functions that are public in nature may also be amenable to judicial review.

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In practice, this means the following legal persons are routinely judicially reviewed:

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-Crown Ministers or their departments or departmental agencies;
-Local authorities (councils);
-Health trusts, police forces, and educational authorities;
-‘Inferior courts’ and administrative tribunals;
-Regulatory and investigatory bodies;
-Other bodies established by statute or prerogative

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Who may bring a claim in judicial review?

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Only those with standing.
only those persons who have been affected by a decision of a public body (plus some other interested persons) may be granted ‘permission’ or ‘leave’ for judicial review.

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What can the Administrative Court offer by way of remedy? ( remedies for judicial review)

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The court has discretion to grant the following forms of relief:
-a mandatory order
-a prohibiting order
-a quashing order
-a declaration
-an injunction
-damages
(Section 31 of the Senior Courts Act 1981).

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On what grounds can judicial review be conducted?

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In the GCHQ Case Lord Diplock famously—and rather conveniently—collated a large sample of judicial review cases and placed them under three headings of ‘grounds’ for review:
-Illegality;
-Irrationality;
-Procedural Impropriety.

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In addition to the grounds of JR what do the courts consider ?

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, the court may appraise whether certain decisions have disproportionately affected the claimant’s Convention rights. This applies only to those Convention rights that are qualified (e.g. Articles 8 – 11)—although unqualified rights can be relied upon too in a different way.

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what may be seen as an addition to the grounds to lord diplock's 3 ?

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Proportionality may therefore be seen as an additional ground of review—perhaps number four (after Lord Diplock’s three).

But remember, this ground of review under HRA is limited to qualified convention rights—often decisions of public bodies engage no Convention rights at all.

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when will the courts interfere ?

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The courts will interfere when a public body has acted:
-beyond its powers (ultra vires)
-irrationally, capriciously, most unreasonably
-in a way that is procedurally unfair
And where qualified human rights are at stake:
-where a body has acted disproportionately.

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why are the courts sensitive toward the judicial review proceedings ?

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-Parliament (if the body is statutory) or the Crown (if prerogative or ministerial) has invested discretion in that public body, not the courts;
-The courts are ill-equipped to make decisions that may be technical or specialised;
-The courts may not be the constitutionally appropriate body to decide certain matters (or the matter may not be justiciable).

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The intensity of review may be stronger where:

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-the claimant’s liberty is at stake;
-the claimant’s human rights are at stake.

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The intensity of review may be weaker where:

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the decision maker has been conferred considerable discretion by Parliament;
-the decision maker is the constitutionally appropriate person to make the decision;
-accountability for the decision would better lie elsewhere—e.g. to Parliament.

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A claimant bring a claim for JR within how many months ?

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There is an incredibly short limitation period of three months for most types of claim.

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what is a jurisdiction ?

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‘Jurisdiction’ refers to a legal power to decide something or make some determination which is of legal effect.
Courts have jurisdiction in respect of certain types of claim—e.g. the High Court has an inherent jurisdiction to hear claims for judicial review.

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jurisdiction can also be what ?

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But ‘jurisdiction’ can also refer to the legal authority to decide where the decision maker is a public body. For example:
-A local authority has jurisdiction to decide on claims for housing benefit.
-A university has jurisdiction to award degrees.
-The Home Office has jurisdiction to decide claims for asylum.

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what was the usual procedure before the anisminic case ?

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Before 1969, the court usually only interfered with a public body’s determination of an issue if the public body had exceeded its jurisdiction(acted ultra vires)

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And what was agreed after the anisminic case ?

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In the landmark decision of Anisminic, the court extended its ability to judicially review the decision making of public bodies by suggesting that any error of law made by a public body (including within its jurisdiction) could be nullified in judicial review proceedings.

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what is an error of law ?

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Errors of law may include:
-the application of the wrong ‘test’
-acting in bad faith
-not taking something into account that ought to (by law) be taken into account
-determining an issue that is not for that decision maker to determine.

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what in general does the Anisminic case suggest ?

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Anisminic suggests that any of these errors of law may nullify a decision of a public body—even if these errors are made within the jurisdiction of the decision maker.

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example of a case limiting the anisminic rule ?

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R v Hull University Visitor, ex parte Page - D sought to challenge his redundancy by arguing that the university had erred in law because redundancy was not a valid reason for dismissing staff under the statutes. The High Court agreed. However the university appealed to the Court of Appeal which allowed the appeal on the ground that dismissal fell within the lawful discretion conferred upon the university’s officers by the university statutes

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asses the hull case

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Although it seems that the university had erred in law because it dismissed a lecturer for a reason other than those prescribed by the statutes (something that the approach in Anisminic would deem unlawful), the House of Lords took a different approach. The university officers had been conferred a specific jurisdiction to act in the interests of the university, and it is not for the court to interfere with the exercise of discretion within that jurisdiction. This includes where the university acts upon an error of law.