A Guide to the Judicial Review Process
To understand the Judicial Review firstly, we need to look at the area of Public Law. Public law, is concerned with the relationship between 'us' as individuals and the State authorities. Public law is then sub-divided into: Constitutional law, which involves the study of the Parliament and the main institutions of government; Civil Liberties, which looks at issues such as human rights and the limiting of police powers; and Administrative law, which focuses on the legal aspects of the day-to-day administration by government and local authorities and how the individual can gain access to redress for a grievance they have against a public body.
It is Administrative law which is important here and the part that is of particular importance is the procedure by which an individual or an 'interested' party can question the legality of an action taken by a public body. The government and local authorities amongst others are elected and are given powers to enact legislation for the benefit of the country. In a democracy, the people who govern us have to do so with our consent. One of the responsibilities of government is therefore to provide people with adequate opportunities to question the good sense and lawfulness of public decisions.
Purpose of a Judicial Review
The court's role in judicial review is different to that of a court's jurisdiction in other areas. Ordinarily, a court can concern itself with the merits of the actual decision made and change it if the court thinks fit. In judicial review, however, the court is not allowed to change or re-take the decision made by the public body. The court is merely given a 'supervisory role', they are supervising the legality of the decisions made by public bodies. This means that the courts are only allowed to 'check' that the public body, in taking a decision, is acting within its authority. The same situation applies to the appeals procedure. The appeal court has no power to change the decision it is merely supervising the legality of it.
The powers that the court has in providing a remedy are restricted to 'orders'. These 'prerogative orders' have the effect of quashing a decision (certiorari), prohibiting an act (prohibition) or making an act mandatory (mandamus). The court can only make an order for the public body to act or not, it can not enforce the order. It is very unlikely, however, that a public body would ever act contrary to the order of the court.
Permission and Full Hearing
Before seeking a judicial review of an action of a public body, all other avenues of redress have to be exhausted. These avenues of redress, being methods of dispute resolution, include the internal complaints procedures, ombudsmen and specialist tribunals. If the individual or interested party is not satisfied they can apply to the High Court of Justice of England and Wales for permission to have their grievance heard at a full hearing.
The 'permission stage' has been introduced since the abolition of the old procedures following the recommendations of Lord Woolf and the Bowman Report. A single judge sitting in the High Court hears the grounds and gives permission or not for the judicial review to go to a full hearing. The new rules pertaining to judicial review are contained in Part 54 of the Civil Procedure Rules.
When permission has been granted for a full hearing, a date is set for the evidence to be presented and for the full hearing. The date for the full hearing can take anything up to 6-9 months from the permission stage. In some cases what is called an interim interlocutory injunction is sought. If granted this order would suspend the operation of the offending legislation or decision, in the intervening period.
At the full hearing, which is heard in the Administrative Court at the High Court of Justice, the matter can be heard before a single judge or up to three judges. The parties to the application for judicial review are called the Claimant, being the person(s) seeking redress and the Defendant, being the public body against whom the proceedings are brought.
All remedies for judicial review are 'discretionary'. So, even if the claimant wins all the legal arguments at the hearing, there is no guarantee that the decision will be set aside or the public authority's actions declared unlawful. The court may decide that giving a remedy would serve no useful purpose, or would be detrimental to good administration or would prejudice the rights of third parties.
The remedies that the court can grant if the claimant is successful are the following:
A 'Quashing Order' - (formerly certiorari).
The decision of the public body is quashed, it is rendered null and void. The reviewing court does not substitute its own decision for that of the public body. In certain cases for example, where the public authorities decision is set aside on the grounds that it was made using improper procedures, the court may remit the matter back to the authority for it to be re-determined. The authority may, however, then reach the same decision although this time it would be careful to follow the proper procedures.
A 'Prohibiting Order' - (formerly prohibition).
The public body is prohibited by the court from acting outside its jurisdiction, where it had made a decision it did not have the power to make.
A 'Mandatory Order' - (formerly mandamus).
The public body is ordered by the court to fulfil a public duty, in a circumstance where the public body has not taken action which it should have done.
If the Claimant or the Defendant lose the judicial review they have the right to appeal. The appeal would be heard firstly by the Court of Appeal, a further appeal can be made to the House of Lords and that is the final appeal allowed in the UK system. Further appeals can be heard in the European courts under certain circumstances which will be discussed later.
An appeal to a higher court has to be on a question of law not fact. The difference between the two is this: the matter of 'fact' is dealt with by the so called court of first instance, whose job is to examine the facts and decide upon the case based solely on the factual circumstances; the question of 'law' is dealt with by the so called appellate court, whose job it is to answer a specific question put to it concerning a legal issue.
The appeal can either be referred by the court on a question of law that it needs to have answered before it can decide on the case in hand or by either party. If one party appeals, the other party may cross-appeal on a different point. Leave to appeal has to be granted either by the High Court at the end of the judicial review or by the Court of Appeal and so on to the House of Lords.
There is a distinct difference between appealing to the European Court of Justice (ECJ) and to the European Court of Human Rights (ECtHR). The ECJ deals with appeals concerning the EU Treaty and the ECtHR deals with matters concerning the European Convention on Human Rights and Fundamental Freedoms (ECnHR).
The European Court of Justice (ECJ)
The ECJ is the final court of appeal and decides on matters concerning interpretation of European Community law under the EU Treaty. The national court considers the factual issues in the case and the ECJ would be referred to only to decide on issues of community law which have not previously been decided on. There is no automatic right of appeal to the ECJ.
The European Court of Human Rights (ECtHR)
The European Convention on Human Rights and Fundamental Freedoms (ECnHR) operates under the auspices of the Council of Europe. This must be distinguished from the European Community or Union. The Council of Europe is an international treaty organisation of which there are 41 members, the UK being one member state. The member states have to comply with the Convention, if they do not an individual from that member state can complain to the Court of Human Rights regarding their treatment.
The ECtHR, which sits in Strasbourg, has since 1998 been renamed the Court of Human Rights. Since the Human Rights Act 1998 has come into force in the United Kingdom, the need to go to the ECtHR has largely been diminished, indeed that was the point. Individuals can now go to the British courts about rights contained in the ECnHR. If there is cause to go to the ECtHR, however, all UK remedies have to be exhausted first.
Rebecca Seeley Harris LLB (Hons) LLM MSc
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