Judicial review (JR) is the process by which judges examine the decisions of public bodies and consider whether the law has been correctly followed.
It is important to stress that JR is not a re-run on the merits of the decision – judges confine themselves to considering whether the decision being challenged was lawful, and complies with the principles of public law. The potential grounds for JR are outlined below.
If a JR claim is successful the usual result is that the decision is “quashed” or nullified and has to be taken again. While this means that the public body can take exactly the same decision again, the need to follow proper procedure means that, in practice, at least a better – and often a substantively different – decision results.
JR can be an expensive and time-consuming process but it often the last mechanism people have for checking the abuse of power within Government and public bodies. It is therefore crucial for upholding the rule of law.
JR is most effective when it forms part of a focused campaign to raise public awareness about issues of either significant local concern or wider public interest.
Who and what can be challenged by Judicial Review?
The decisions, acts, and failures to act by public bodies exercising public functions are all potentially challengeable by JR.
What are the grounds for Judicial Review?
The main grounds for JR (which can overlap) include illegality, irrationality, procedural unfairness.
Public bodies acting outside their powers – public bodies are generally only free to do what the law says they can do, be that under an Act of Parliament or secondary legislation such as regulations, rules and orders. If public bodies do not follow the law correctly, any resulting decision, act, or failure to act will be unlawful.
For example, where the law gives a public body the ‘discretion’ to take a decision, public law regulates the manner in which that power is exercised, including by requiring the public body:
- to take into account only relevant information and to disregard all irrelevant information,
- to address the right question, and take reasonable steps to obtain the information necessary to make a properly informed decision; and,
- to make sure they have not limited, or ‘fettered’, their discretion by applying a very rigid policy as if it were the law.
Irrationality and proportionality.
The courts may intervene and quash a decision where they consider it to be “irrational” or “perverse” (this is sometimes referred to as Wednesbury unreasonableness).
The test for irrationality is whether a decision “is so unreasonable that no reasonable authority could ever have come to it”. In practice this can be very difficult to show. Because of this, irrationality is usually argued alongside other grounds.
In some cases. The concept of proportionality involves a balancing exercise between the legitimate aims of the state on one hand, and the protection of the individual’s rights and interests on the other.
The test is whether the means employed to achieve the aim correspond to the importance of the aim, and are no more intrusive on the rights of the individual affected than is necessary to achieve the aim.
Public bodies must act fairly. They must also be – and be seen to be – impartial. For example, they must not allow decisions to be taken by people who have a financial interest in the outcome or a personal relationship with one of the parties that could give the appearance of bias. If there are express procedures laid down by law they must follow them.
For example, a public body may be under a duty to consult people who it believes may be affected by a decision before the decision is made, perhaps because the law says there is such a duty, or perhaps because people have been consulted on similar proposals in the past and so have a reasonable expectation that they will be consulted again.
Judicial review reliefs/Remedies.
Some of the reliefs include: a declaration, injunction, a direction to give reasons, prohibition, setting aside and remission for reconsideration, mandamus, temporary interdicts and other temporary relief, and an award of costs.
The court may direct the taking of the action, declare the rights of parties, direct parties to do or refrain from doing any act, or make an orders as to costs or other monetary compensation.