Constituency Casework: Judicial Review

What is judicial review?

Judicial review allows individuals, businesses, and other groups to challenge the lawfulness of decisions made by Ministers, Government Departments, local authorities and other public bodies. Judicial review is only concerned with the acts of public bodies in exercising public functions. The acts of private individuals, or public bodies exercising private functions, are governed by private law and not subject to judicial review.

What are the main grounds of review?

Judicial review claims must show that public body has acted unlawfully, for example by acting in a way which is in breach of a legal duty. The main grounds of review are:

• illegality – for example: a decision-maker that fails to use statutory powers in accordance with the boundaries prescribed in the legislation;
• irrationality – for example: a decision-maker makes a decision which no reasonable person could possibly have reached;
• procedurally unfairness – for example: if the decision-maker failed to give the applicant a chance to make representations;
• Convention rights – for example: if the decision-maker acted in a way that violated an individual’s right to freedom of expression as protected by Article 10 of the European Convention on Human Rights.
• European Union law – for example: if the decision-maker fails to give effect to a right protected by European Union law.

These are broad heads of review, each of which is composed of a number of sub-heads. The grounds of review are complex, subject to change and can be categorised in a number of different ways.

Who can bring a claim?

To be able to bring a claim in judicial review, you must have “sufficient interest” in the matter to which the claim relates. This is known as standing. Individuals that are directly affected by a decision will ordinarily have standing.

Judicial review is said to be a remedy of last resort, meaning that alternative remedies, such as internal complaints procedures, ought to be exhausted before bringing a claim.

A judicial review claim must be brought promptly after the decision is made. There is a three month time limit from when the decision is made. In certain circumstances the time limit can be extended.

What remedies can the court grant?

When bringing judicial review, the claimant is asking the court to grant a remedy. The remedies available are as follows:

• Mandatory order – to force a public body to do something required by the law;
• Quashing order – to overturn or undo a decision already made;
• Injunctions – to require a public body to do or refrain from doing a particular act;
• Declarations – a statement by the court on the legal position;
• Prohibiting order – to prevent a public body taking a unlawful action yet to be made;
• Damages – in limited circumstances damages can be awarded.