Judicial Review

Traditionally, judicial review focused on legality. Powers delegated by Parliament to a body, whether rule-making, adjudicatory, or quasi-judicial, must be exercised in accordance with the terms of the delegation, exercised properly for their purpose, and carried out with due procedure. The primary focus was on whether the particular action was lawful within or outside powers and whether the decision-making proceeded in accordance with principles of natural justice.

The role of judicial review has expanded, particularly with the advent of the Human Rights Act. This requires public bodies to act in accordance with substantive and procedural protections provided under the Convention rights.

Traditionally, judicial review was regarded as distinct from the merits of the decision. However, courts now require that statutes be interpreted in accordance with human rights principles and with basic rules of reasonableness, natural justice, and fairness. The expansion of judicial review in the United Kingdom has been controversial, with proposals made to significantly limit its scope.

So-called administrative law protects citizens by ensuring that governmental powers are exercised within their legal bounds, for proper purposes, in good faith, and in compliance with the law. Procedural fairness must also be observed.

Under UK practice administrative law clauses, the right of judicial review may, in principle, be restricted by Parliament. So-called ouster clauses may breach Convention rights or procedural due process. At common law, efforts have sought to avoid ouster clauses through various means and methods of interpretation. There is a strong presumption that statutes should not be interpreted in a manner that deprives citizens of their right of access to court.

Judicial review on human rights grounds must take place within one year, longer than the general judicial review period, which is limited to three months. The Convention rights apply to courts themselves, tribunals, and a range of public bodies and have been extended to certain types of public bodies exercising quasi-public rights.

In addition to the general jurisdiction of courts in judicial review claims, the courts may make a declaration of incompatibility with Convention rights in human rights cases.

The effect of the Human Rights Act has been to supplement the procedural principles and requirements of the Convention with the traditional common law rights of natural justice. Article 6 of the Convention requires a fair trial.

The House of Lords has indicated that where it is alleged that a Convention right has been breached, courts must go beyond the traditional administrative law review. Where there is a violation of the Convention, there may be a greater scope for review, extending beyond the traditional administrative law principles. It appears courts may be prepared to expand beyond the traditional concepts of reasonableness when necessary to hold substantive or procedural Convention rights.

Judicial review applies in respect of decisions made by public bodies and generally does not exempt private parties. However, a body that is apparently private may exercise a public function, as occurs with various professional bodies.

There exists a very wide range of public bodies whose origins differ significantly, based on particular legislation schemes spanning the last 150 years. Over the last 35 years, there has been a significant change in the organization of public bodies, and many state industries and bodies have been privatized. Independent regulators have been established in conjunction with the privatization of utilities.

With the rise of the welfare state, a great many tribunals and bodies have been established to administer legislation and decide matters of citizens’ entitlements and rights.

Privatization has been a major feature of the last 30 years, including the privatization of British Gas, British Airways, British Railways, Telecom, the water industry, and the electricity industry.

In recent decades, there has been an increase in the number of regulatory bodies designed to enforce public bodies and oversee many newer bodies, including the Press Complaints Commission and the Police Complaints Authority, formed with the view to keeping the public accountable.

If bodies are established by statute, whether primary or delegated legislation, they will almost naturally be subject to judicial review as public bodies. However, the nature of the power determines the position. If the body is exercising public functions or if the functions have public law consequences, then the body will be subject to judicial review.”

Some cases are marginal. The Jockey Club has been held to be a body constituted under private law only. The Takeovers Panel is constituted by private rules but it is clearly a public body and has been held as such. Lloyds of London is not a public body. Context held not to be a public body by the Court of Appeal in relation to marital relationships with the applicant; the court decided was based on contract law.

Private schools have been held not to be public bodies while public higher educational bodies have been held to be public bodies. Pupils attending fee-paying schools that are publicly funded in part have been held to be bodies subject to judicial review, particularly in the context of suspension and expulsion of pupils. Privatized water and sewage utilities have been held to be public bodies.Many schemes of legislation will provide for a right of appeal to a tribunal or, in some cases, to the court. The system of tribunals has been established under 2007 legislation in England and Wales.

Issues may arise as to whether a person may take judicial review if he has not exhausted the appeal mechanisms available. Generally, the party should pursue the available appeal mechanisms before taking judicial review. The traditional position was that judicial review was not available unless available remedies provided for under the relevant scheme had been exhausted. Judicial discretion will generally be exercised to refuse judicial review where an alternative remedy is available.

Where a statutory scheme provides for a review mechanism, complaints mechanism, that should generally be utilized and exhausted before judicial review proceedings may be entertained.

Where, on judicial review, the outcome is found to be unlawful, it is likely to be quashed and it will be void and quashed. The body will be obliged to reconsider the case in accordance with the correct standoff and procedural rule. There is no ineligibility that a different decision will be made.

Remedies in judicial reviews are discretionary and not as of right.Judicial review is based on the Supreme Court Act 1981 provided for under the Civil Procedure Rules. An application may be made to the High Court for one or more of mandamus, prohibition, or certiorari declaration or injunction restraining a person not entitled to do so from acting in office.

The Civil Procedure Rules provide for judicial review. A specific standalone procedure for judicial review. The remedies are set out above, moved below.

No application for judicial review should be made unless leave of the High Court has been obtained in accordance with the Rule of Court. The court shall not grant leave to make an application unless it considers the applicant has a sufficient interest in the matter to which it relates. The Criminal Justice and Courts Act 2015 requires that on application for judicial review, the applicant must show that the decision on the matter has made a substantial difference to him.

Rules generally require that judicial review be commenced within three months. Time limits may be provided for in statute.

An application for leave for judicial review must be served on the defendant. The court may order that it be served on interested third party. If there is an arguable case, leave will be granted. If leave is refused, the claimant may request reconsideration. He may take an appeal to the court of appeal against refusal of leave/permission for judicial review.

An applicant for leave for judicial review must have sufficient information or standing in the matter to which the application relates. There must be a genuine grievance which is sought to be remedied.

Generally, the application is an individual whose personal rights have been adversely affected. The decision may be such that it affects the interest of the public as a whole. The principal purpose is to screen out unnecessary cases brought by persons without a stake in the matter concerned. Generally, it will be clear when the applicant has sufficient interest.

Where the matter is of more general concern, the issue of standing is more difficult. If a matter is of wider concern but the applicant has a distinct interest in it, leave may be granted. Where, however, it is a matter affecting the public generally, there may be insufficient interest. Standing test is broad. The Human Rights Act requires that a person be a victim of a breach of Convention rights.

Difficulties arise where the applicant is a pressure group or representative body. It is perfectly possible that a group is distinctly affected by a decision. Accordingly, where a taxi license holder is a holder affected by the change in licensing laws, the representative Association had clear standing. Similarly, decisions affecting a particular group may be the subject of an application by a representative body.

Self-appointed bodies, pressure groups without specific standing who are not representative groups specifically or directly affected.

Courts have been willing to allow general challenges to five bodies as wide as taxpayers to unlawful revenue actions. They have allowed applications relating to the payment of public monies to the European Union.

Where bodies have been formed for specific public interest campaigns, they may not have sufficient interest in the matter. Interest need not be direct financial or legal. However, the assertion of interest by groups of persons is not necessarily sufficient even if there is a wide range of support.

Some courts take a more liberal and broader approach than others. In some cases, the courts will allow challenges in the interest of justice on the basis by widely-ranging bodies, with significant representation, largely on the basis that to fail to do so would mean that illegality might go unchecked.

In some cases, public bodies established with a general remit to protect public facilities or environmental facilities may have a standing in particular cases. In particular, there is unlikely to be any other body with sufficient interest. The court may hold that the representative body has sufficient interest. Public bodies themselves may have sufficient interest in matters of general concern under their legislative remit such as to entitle them to take judicial review.