Judicial Review
This is a vast subject and what follows is a brief summary.
Judicial review is the main method for challenging the decision of any public authority by anyone with a sufficient interest in the decision, for example, a parent who is not happy about the local authority’s decision-making in a care case.
A judicial review is not the same as an appeal against a decision. It is an attack on the way in which the decision was arrived at rather than a direct attack on the decision although it may result in the decision being quashed or overruled. The main grounds for challenging a decision on judicial review are that it is:-
- Illegal: the decision maker has applied the law incorrectly or acted outside the law altogether, for example, by making a decision it did not have the power to make or by using a power to make a decision which was not the sort of decision Parliament intended it to be used for.
- Irrational: the decision maker’s decision was wholly unreasonable (‘so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it’.
- Procedurally improper: for example, failing to follow the rules of natural justice, failing to act fairly and failing to follow the rules set out in legislation or disciplinary procedures etc, failing to take into account relevant considerations or taking into account irrelevant considerations.
Applications for judicial review must be made very promptly after the decision challenged and certainly within three months of it. It is a two-stage application. Some cases are screened out without a hearing as being without merit. If the case proceeds to a full hearing, the court has a number of options if it agrees that the decision challenged was not correctly made. It can make a declaration (a legal statement of someone’s status or entitlement or power to do something), grant an injunction (to stop something from happening or order that it should happen), quash the decision altogether (wipe it out as if it had never been made), make an order that a decision should not be made at all (or only on conditions being fulfilled) or order the authority to take certain steps to make sure it fulfils its legal obligations. In very rare circumstances the court can also make an award of damages. What the court does not do is to substitute its decision for that of the body who has been challenged, though the effect of the court’s decision may end up being the same thing as making a new decision. It is completely up to the court whether to grant any remedy at all and it will not do so, for example, if it agrees that there has been some procedural impropriety but thinks it would not have made any difference to the eventual decision or that there has been no unfairness.
Generally speaking applications for judicial review do not involve the giving of any oral evidence and are decided on written evidence and legal arguments.