Tagged as: UK Law

Judicial Review Lecture

A. Introduction

One of the main objectives of judicial review is to hold the government to account. Accountability means the checking, controlling or regulating in the case of judicial review, of government so that it is held to account in relation to the principles of administrative law. It is not the only means of legal accountability to which public decision makers may be held to account; actions in tort and contract, as well as non-legal methods are also used. However, the main legal method for holding the government to account is through judicial review.

The role of the courts in acting as a check on the government is different to that of Parliament. Judges are non-political; they are unelected and cannot call the executive to account without an individual or organisation whose rights have been violated bringing a matter to them.

Part 54.1 of the Civil Procedure Rules defined judicial review and states:

(2) In this Section-

(a) a claim for 'judicial review' means a claim to review the lawfulness of-

(i) an enactment; or

(ii) a decision, action or failure to act in relation to the exercise of a public function

Judicial Review is initiated in the Administrative court by individuals or organisations that are affected by the exercise of state power; the courts enforce the rule of law by ensuring the public bodies do not act in excess of their legitimate powers. The courts ensure that public bodies are acting rationally, reasonably and proportionally. The court also ensures that the public body has adhered to the rules of natural justice. The court reviews the process undertaken by the state to ensure that the rules of fairness and integrity of process have been adhered to. Finally, the courts will also require that executive power is exercised in conformity with the rights and freedoms that are provided for within the European Convention on Human Rights [ECHR].

B. The History of Judicial Review

During the second half of the twentieth century, the role of government extended into areas that it previously had not been concerned with. The welfare state was established in which government took on roles in health, welfare, housing, immigration and education. As a consequence, there was an increased ability for private individuals to come into conflict with government exercise of powers.

A series of coherent principles of judicial review were therefore established during the 1960s, led by Lord Reid in the House of Lords. The law of procedural fairness was reformed first, then substantive review and aspects of the relationship between the law and the Crown were reformulated and strengthened. Finally, jurisdictional review was revisited and reformulated.

The most recent version of the Civil Procedure Rules 1998 was introduced in April 1999. It lays down a detailed procedure that should be followed when bringing a claim to the High Court or to the Court of Appeal. The Senior Courts Act 1981 is the other most important legal instrument, which governs judicial review.

C. Grounds for Judicial Review

The grounds for judicial review will be considered with in more detail in section 11.2, but it is useful at this stage to understand what they are and understand how they are necessary in order to proceed with a claim for judicial review.

D. Judicial Review and the Constitution

The principle of parliamentary supremacy provides the foundation for judicial review. The courts can not strike down legislation for being unconstitutional in the UK, but they do ensure that those exercising public functions are acting within the limits of their powers. Some authors have suggested that the constitutional basis for judicial review is the ultra vires principle. It is considered that the courts' authority in judicial review is in ensuring that public authorities act in accordance with Parliament's intent as established in Statute. The courts' jurisdiction is supervisory; they focus on the legality of the decision made by the public authority rather than the merits of the decision.

A consequence of the separation of powers, there are some decisions of the courts that the courts are reluctant to review. Traditionally, issues of national security, defence, and foreign affairs have been treated with particular caution by the courts. In the Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 case, national security consideration defeated the claim of the trade union to be consulted before a decision was made to withdraw the members' rights to belong to a trade union. However, there are cases where the courts have considered issues of national security.

E. Distinguishing between Judicial Review and Appeal

The distinction between judicial review and appeal proceedings relates to the power of the court; in appeal proceedings the court might substitute its decision for the decision of the court at first instance. In judicial review proceedings the courts basic power is to quash the challenged decision and to find it invalid; for the merits of the case to be determined the case must return to the original decision-making authority.

The second main distinction relates to the subject matter of the court's jurisdiction. The appeal court has to decide whether a decision was right or wrong based on the considerations of law. The judicial review court has the ability to decide if the question was legal, based upon the appropriate powers that the public body have been endowed with. There are many statutes, which provide for appeals from decisions by public bodies; commonly such appeals are limited to points of law, but in certain instances they may extend further to the facts of the case. Judicial review cases are always confined to questions of law. 

The Housing Act 1996 grants a right of appeal and so the claimant is expected to seek a remedy under an appeal under this Act rather than under judicial review. Prior to 1996, a large number of housing cases were being subjected to judicial review which was a cause for concern by government. As a result, appeals which related to homelessness under the 1996 Act are now dealt with appeal via the county court. Judicial review proceedings on the issue of housing are now limited to exceptional cases.

F. The Human Rights Act 1998 and Judicial Review

[Recap of the HRA] Section 3 of the Human Rights Act 1998 (HRA) requires that courts in so far as it is possible to do so, read and give effect to legislation in a way that is compatible with rights and freedoms under the European Convention on Human Rights (ECHR). Courts must also take account of decisions of the European Court on Human Rights (ECtHR) in interpreting the ECHR under section 2 HRA. Higher courts are able to grant a declaration of incompatibility of a statutory provision with an ECHR right under Article 4 HRA. A fast track procedure is available under section 10 HRA.

Members of the executive have at times been highly critical of the judiciary in their decisions in judicial review cases, e.g. David Blunkett, Home Secretary in 2003, as well as in the Tabloid press, criticising unelected judges for overturning the decisions that have been debated by Parliament. The following case was criticised by David Cameron as Prime Minister in 2011, as finding some requirements of the sex offenders register to be at odds with human rights provisions.

i. Grounds for judicial review under the HRA

Under the HRA, it is possible for a claimant to argue that a breach of a Convention right was a ground for judicial review. Section 6 of the HRA provides that it is unlawful for a public authority to act in a way that is incompatible with the HRA. Section 7 HRA requires that a claimant be a victim of the unlawful act. Judicial review claims under the HRA must be brought within 3 months under section 7(5)(a)(b) HRA. The court might grant a remedy of damages under section 8 HRA.

ii Public and private authorities under the HRA

Primarily the HRA provides for claims against public authorities, but claims might also be brought against private bodies that are carrying out public functions. Since courts themselves are defined as public authorities under section 6(3) HRA they are bound by provisions of the ECHR in decision making even when making decisions which related only to private parties.  In this sense, the Convention is said to have indirect horizontal effect.

In Campbell the case was brought against the newspaper as a tort claim for breach of confidence, since Campbell was not able to bring a direct action against MGN as a private party under Article 8 ECHR. However, once the case is brought before the court, the court is bound to apply Articles 8 and 10 in their decision making process.

G. Judicial Review in Practice

Claimants turn to judicial review when they have exhausted other avenues of redress, such as the First-tier Tribunal. If the claimant succeeds the matter will normally be remitted to the original decision maker for a new decision in the light of the court's judgment. The decision maker might reach the same decision as was made previously, while this time acting lawfully.

When judicial review proceedings are used to protect 'Convention rights' under the HRA, the court might not be able to reach the same decision after reconsideration.

i. The Judicial Review Procedure

There are a range of tribunals and courts that exercise the jurisdiction to review the legality of public actions. The claim for judicial review procedure in England and Wales is set out in part 54 of the Civil Procedure Rules, (secondary legislation established under the Civil Procedure Act 1997).  The judicial review procedure consists of two stages:

1. Claimants must obtain the permission of a judge to make a claim;
2. If permission is granted the will proceed to be dealt with by a court.

In order to obtain permission, the claimant must show that the claim was made within the time limits, the claimant has standing, and other potential avenues of redress have been exhausted. The application must be made promptly and claims made within 3 months have been held not to have been made quickly enough and refused. Lord Diplock explained the reasons for strict time limits judicial review cases in O'Reilly v Mackman [1983] 2 AC 237, when he stated that it was in the public interest in good administration that public authorities and third parties be not held in suspense as to the legal validity of a public decision. The court does have the discretion to extend the time limit, but this discretion is only used in rare cases.

Part 54 Civil Procedure Rules states that a claim for a judicial review means a claim to review the lawfulness of an enactment, or decisions or action in relation to the exercise of a public function. It is now possible to use judicial review proceedings to consider whether or not primary legislation in compatible with EU law, or incompatible with Convention rights under s.4 HRA.

Part 54.1 Civil Procedure Rules states that judicial review claims are concerned with the exercise of public functions, they are not limited to government bodies, but can include charities, and self-regulatory organisations that can be subject to judicial review claims through there exercise of public functions. A wide range of bodies, including some that are within the private sector, now exercise public functions.

The main means by which a judge determines whether a body is subject to judicial review is to look at the source of the body's powers. Acts of bodies whose powers derive from statute or the prerogative will usually be reviewable. Decisions taken under contractual obligations are not considered reviewable.

It may be the case that the source of a body's powers cannot be identified, in the following case the Court of Appeal held that a Panel could be reviewed due to the importance and impact of the functions it undertook.

There is a similar wording within section 6 HRA to determine whether bodies are public authorities for the purposes of the Act. The issue of a private home that exercised a public care function has also come before the courts.

ii. Does the Claimant Have Standing?

Claimants must show that they have sufficient interest in a matter to bring judicial review proceedings in respect of it. Previously judges have taken a 'closed' approach to the persons who had sufficient interest, more latterly a more open approach has been adopted which allows claimants into court if they have an arguable case on the law. An important early decision representing this modified approach is the IRC case.

Lord Diplock's approach has now become the dominant approach, as seen in the World Development Movement case.

Even in WDM the courts were very careful to ensure that the claimants had an arguable case in law. The WDM argued that the Home Secretary had misused powers conferred by legislation. 

iii. Permissions stage

The permissions stage is governed by part 54(10) Civil Procedure Rules, the court decides whether it will allow the case to proceed to a judicial review hearing. This is to prevent 'trivial complaints and busybodies' from wasting the court's time [Lord Diplock, IRC v National Federation of Self employed and Small Businesses Ltd].  Claims for permission are dealt with by a judge on the papers; if permission is refused the claimant might request an oral hearing. There is a possibility of appeal to the Court of Appeal under CPR 54(12).

Permission often relies upon  whether there is an 'arguable case'. A study of the permissions stage [V. Bondy and M. Sunkin, 'Accessing judicial review' [2008] Public Law 647] found that in 1981 71 per cent of claimants were given permission to proceed, whereas in 2006 this figure had fallen to only 22 per cent. The research concluded that this was partially due to procedural reforms introduced in 2000, which led to higher levels of settlement out to court.

iv. The Hearing

A single judge commonly conducts the hearing, with witnesses and cross-examination being rare. The case is nearly always focused on issues of law rather than fact. Remedies are discretionary.

v. Judicial Review and Exclusivity

The process of discovery was simplified during the changes made to the judicial review process following the Law Commission's report (1976).

vi. Public Law and Private Law Proceedings

An action against a public authority might be a private law action, such as damages for negligence. If this is the case this is not a judicial review proceeding. In Davy v Spelthorne Borough Council [1984] AC 262 the claimant argued that the defendants had negligently failed to inform him of his rights and so failed to appeal an enforcement order in relation to his property. The House of Lords held that this was a valid claim under private law, since he was not arguing that the validity of the enforcement order, but was claiming that the council had acted negligently under private law. However, in Cocks v Thanet [1983] 2 AC 286 the subject matter of the claim was whether the claimant was made unintentionally homeless under the Housing (Homeless Persons) Act 1977, he applied for an injunction and damages. The court held that he must apply for judicial review as opposed to these civil law remedies since the court must determine the legality of the authority's decision, which made him homeless.  The decision of a body can be challenged in civil and criminal proceedings.

The enactment of the Civil Procedure Rules has led to courts taking a more flexible and pragmatic approach to whether a claimant should proceed under private law or judicial review. In Clark v University of Lincolnshire and Humberside [2000] 1 WLR, a student challenged the university appeal process and regulations over a case of alleged plagiarism. She sued the University for breach of contract, but the University argued that it should have been a judicial review hearing which was debarred for being outside the three-month time limit. The Court of Appeal held that since the CPR the court had greater powers to supervise a private law case against a public authority and if such cases were unmeritorious the court could strike the case out; the claimant was allowed to proceed with her public law claim. It was held that the exclusivity principle should not now be applied in an overtly rigorous manner.

vii. Exclusion or restriction of access to judicial review

The government have sometimes inserted ouster clauses into statues providing that a body such as a tribunal should appeal or review a certain decision.

Courts have taken a similar approach to ouster clauses, for example a clause that states 'a decision shall not be challenged in a court of law'. These clauses seek to prohibit legal action relating to decisions of a body.

Time limited ouster clauses impose a time limit on the claimant; these are permissible. Courts have held that when the time limit has expired the clauses prevent a claim for review. In R v Secretary of State for the Environment, ex p Ostler [1977] QB 122 Schedule 2 to the Highways Act [1977] QB 122, stated that any challenge to an order had to be made within 6 weeks of the date that the order was published; the claimant made a challenge outside of this time limit.  The court upheld this time limit, as in their view the delay and cost would be contrary to the public interest.

Parliament can also restrict the ability of judicial review by introducing alterative statutory appeal processes to a court to tribunal. In R (A) Director of Establishments of the Security Service [2009] UKSC 12, the claimant wished to bring a claim for judicial review in the Administrative Court, under section 65(2)(a) Regulation of Investigatory Powers Act 2000 stated that any claim under the HRA against the security services should be brought before the Investigatory Powers Tribunal. The Supreme Court distinguished this case from Anisminic, in that Parliament had not ousted judicial security of the security services but simply afforded the power of scrutiny to the IPT, who had more expertise in dealing with sensitive information.

H. Conclusion: the effectiveness of Judicial Review

The effectiveness of judicial review proceedings have to be considered within the light of the courts' limited powers under the constitution. Under judicial review is expensive to bring a claim; it can cost upwards of £30,000 if the claimant loses and is required to pay the defendant's costs [https://www.leighday.co.uk/LeighDay/media/LeighDay/documents/JR-Quicky-and-Easy-Guide.pdf, p.3]. Court's powers are also limited since it is not possible to challenge primary legislation even if it conflicts with fundamental constitutional principles. If the executive has acted within the powers conferred to them by statute, the courts are unable to interview through the judicial review jurisdiction. Parliament has also curtailed the jurisdiction of judicial review by limiting the subject matter of the claims that can be heard through alternative statutory procedures. However, judicial review does perform an important constitutional function, not only on account of the decisions that are reached but also through the it's symbolic importance for the values that it embodies and protects.

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