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11.1.2 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.

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.

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 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

A series of coherent principles of judicial review were 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.

The grounds for judicial review will be considered with in more detail in section 11.2.

D. Judicial Review and the Constitution

The principle of parliamentary supremacy provides the foundation for judicial review. The courts cannot 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.

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. E.g. Council of CivilService Unions v Minister for the Civil Service [1985] AC 374.

Case in FocusA v Secretary of State for the Home Department [2004] UKHL 56 (Belmarsh detainees case)

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.

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.

Case in FocusR (on the application of F and Thomspon) v Home Department [2010] UKSC 17

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.

Claimants turn to judicial review when they have exhausted other avenues of redress. 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.

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. The judicial review procedure consists of two stages.

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.

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.

Case in FocusAston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank and anor [2003] UKHL 37

The main means by which a judge determines whether a body is subject to judicial review is to look at the source of the bodies’ 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.

Case in FocusCouncil of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 409

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.

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.

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'.

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).

Case in Focus:O'Reilly v Mackman [1983] 2 AC 237,

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. E.g. Davy v Spelthorne Borough Council [1984] AC 262, Cocks v Thanet [1983] 2 AC 286. 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. E.g. Clark v University of Lincolnshire and Humberside [2000] 1 WLR.

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. E.g. R v Secretary of State for the Environment, ex p Ostler [1977] QB 122.

Parliament can also restrict the ability of judicial review by introducing alterative statutory appeal processes to a court to tribunal. E.g. R (A) Director of Establishments of the Security Service [2009] UKSC 12. The Supreme Court distinguished this case from Anisminic.

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 it is expensive to bring a claim. Court's powers are also limited since it is not possible to challenge primary legislation. 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.

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