Definition of Judicial Review
Judicial Review is done by the High Court and it is a process of reviewing acts done by public authorities or a review of a court or a tribunal decision. Such review can be done with respect to the procedural issues and in relation to whether the decision was correct according to the law. It must firstly be examined whether a particular decision can be subjected to judicial review. Such a review can be done against a public body and a decision must constitute infringement of public law rights not private law rights (contract,tort,employment) where only individuals are involved. Only a person who has the sufficient interest in the matter can apply for a decision to be reviewed by a judicial review.
Public body is a body whose power is granted to it by the Statute or legislation and this body is exercising some sort of a public function.
The individual’s personal rights must have been affected by the decision which is to be reviewed. Pressure groups may sometimes have an interest too.
Grounds for Judicial review
1. Ground Illegality
The public body is not allowed to abuse its powers. Therefore if the decision is illegal, made outside of powers of a public body, then the right to apply for judicial review arises. Such a decision is called ultra vires. Such an abuse is e.g. when the courts simply make illegal decision which is outside their powers, they may sometimes misinterpret the law which may have considerable consequences, they may error on fact or they abuse their discretion or they exercise retention of discretion.
Ultra vires means that the restrictions on decision making powers are violated.
2. Ground Irrationality
If the decision is irrational and unreasonable it will give rise to application for a judicial review. The decision must be so unreasonable that no normal person would have made it. It is very difficult to prove this ground. The courts often quash the decision if it infringes person’s fundamental rights and if the decision is unreasonable. It has long been considered and discussed whether proportionality should also be made a ground for application for a judicial review.
The public body must be proportional when deciding all decisions. By proportional it is meant that the body acts in a way which will fulfil all legitimate objectives. There must be a careful consideration whether such way requires unnecessary infringements and such an infringement must be as little as possible.
3. Ground Procedural Impropriety
Proportional impropriety arises if a public body does not follow procedural requirements which it is obliged to follow, and if the body acts in a way which does not follow common law rules of natural justice as it has an obligation to act fairly.
For more information on:
- The right to be heard
- The rules on impartiality
- Connection with Article 6 of the European Convention on Human Rights