Judicial Review is the process by which judges examine the decisions of public bodies and consider whether the law has been correctly followed.
It’s important to stress that a judicial review challenges the way in which a decision has been made rather than 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.
If a Judicial Review 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 substantively different decision results.
Judicial Review can be an expensive and time-consuming process but it is 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.
From government ministers to local authorities, the decisions, acts and failures to act by public bodies exercising public functions are all potentially challengeable by Judicial Review. Non-Departmental Public Bodies (NDPBs), such as the Environment Agency and Natural England, may also be subject to Judicial Review.
Judicial reviews can be sought on the grounds that a decision is:
- Illegal and arises when a decision-maker misdirects itself in law, exercises a power wrongly or improperly purports to exercise a power that it does not have, which is known as acting ‘ultra vires.’
- irrational and may be challenged as unreasonable if it “is so unreasonable that no reasonable authority could ever have come to it.”
- procedurally improper and fails to observe statutory procedures or natural justice.
- in breach of legitimate expectation, either procedural or substantive. When a public body is, by its own statements or acts, required to respond in a particular way but fails to do so, it is in breach of legitimate expectation. There cannot, however, be any expectation that the body will act unfairly or beyond its powers and the need to observe expectations must not fetter the public authority.
The question of remedy is often critical in Judicial Review proceedings. It may determine not only whether it’s worthwhile bringing a claim, but also whether permission will be granted to do so.
One or more of six forms of final relief are available and all are discretionary:
- A Quashing Order that nullifies the decision in question
- A Prohibitory Order that restrains the body under review from acting beyond its powers
- A Mandatory Order that requires the body under review to carry out its legal duties
- A Declaration
- A Stay or Injunction
We have vast experience in Judicial Review proceedings; particularly within the local government sector. Our experience also extends to decisions made by HMRC, where we can act quickly in seeking immediate injunctive relief.