What is Judicial Review?

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

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. 

Sufficient interest

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

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.  

Proportionality

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. (E.g. the right to be heard or the rules on impartiality) There is an exception to the rule; a public body does not have to act fairly if e.g. national security is endangered. 

The right to be heard

An individual who is expecting the outcome of a decision should be given prior notice with respect to the actions which are going to take place e.g. time, place. An individual has the right to make his own representations and so to defend himself, call witnesses etc. An individual should also be given the reasons for the decision e.g. explanation as to the circumstances and the facts, demonstration that all issues were addressed, explanation of the right to appeal etc. 

The rules on impartiality

In other words this is called the rule against bias. If there is a possibility of direct or indirect interest in the matter and the decision may by this reason be impartial. The person who was not impartial in making a decision should immediately be disqualified and a decision should be invalidated. If it is necessary to make such a defence it is a defence. 

Connection with Article 6 of the European Convention on Human Rights

Every individual has a right to fair and public hearing at an impartial tribunal and all this must be done within a reasonable time. This right is therefore closely connected with the doctrine of judicial review. If the decision was reached through a violation of Article 6 rights; such a decision can be challenged. 

Procedure

An individual who has an interest in a matter can apply for judicial review but before he does so he should exhaust all other remedies. An individual will then have to obtain the court’s consent (High Court Judge) in order to bring a claim for judicial review. There is a pre-action protocol for judicial review which the parties may be required to follow. Such a protocol gives guidance on procedure in relation to making the claim and the timetable which must be complied with. Firstly a claim form N461 must be lodged at Administrative Court Office. With this claim the Claimant should send all evidence and documents that he thinks will be essential in making a new decision and quashing the old one. The claimant should therefore make formal detailed statements of his case. It is important to note that an individual can only bring a claim for judicial review within 3 months of the decision which gave rise to such a claim. The court may give consent for the claim for judicial review under certain conditions. The claimant does not normally have any right to appeal if such a consent or permission is refused but may request to reconsider the matter again. The claimant still has the right to appeal to Court of Appeal. If the permission is granted, the claim can be served on the Defendant. Hearing (Substantive) will then take place, where expert evidence can be heard etc.

Remedies

The court has the discretion to award the remedy. Remedy may be affected if there was undue delay or other improprieties from the side of the Claimant. The court may award damages, declarations, injunctions, quashing order (which quashes the decision), prohibited order (which will prevent the public body from acting ultra vires again) or mandatory order (which will impose an obligation upon the public body to perform its legal obligations).