Judicial Review

• Judicial Review


  The jurisdiction of the superior courts to review the acts, decisions, and omissions of public authorities in order to establish whether they have exceeded or abused their powers
• Judicial review is the means of ensuring that public bodies act within the limits of their legal powers and in accordance with the legal principles governing the exercise of their decision-making functions
• Judicial review


  Developed in the 17th Century through the prerogative writs
• Judicial review is now specifically grounded in statute in Part 54 of the Civil Procedure Rules and s.31 Senior Courts Act, 1981
• Judicial review


  Is about the process and not the substance of a decision
• Judicial review


  Involves a challenge to the legal validity of a decision and not the substantive merits of the case
• Judicial review provides a mechanism by which those affected by government decisions can challenge the validity of those decisions in court
• Judicial review imposes legal limits to decision-making in the public domain
• Judicial review upholds constitutional principles such as parliamentary sovereignty, rule of law, separation of powers
• Ultra vires model


  Argues that judicial review is legitimate because it enforces the will of Parliament
• Common law model


  Judicial review reflects "judicial notions of what is normatively required by justice and the rule of law"
• Modified ultra vires model


  Even if courts develop rules, Parliament allows them to, thus upholding a 'general intent'
• Judicial review deals with the action of a public body
• Formally private bodies carrying out 'public functions' can be subject to judicial review
• Standing


  In order to bring a judicial review challenge a person has to have sufficient interest in the matter
• The courts have taken a liberal approach in recognising that a person seeking to bring a case has a sufficient interest
• Grounds for judicial review

  • Illegality
  • Irrationality
  • Procedural Impropriety
• Illegality


  Assessing whether there is a legal basis for the actions of a public authority (acting in excess of power and abuse of power)
• Irrationality


  Where no valid reason supports the exercise of a power (arbitrary exercise of power)
• Procedural Impropriety


  Failure to observe statutory procedural rules and breach of rules of 'natural justice' (duty to act fairly; and the rule against bias)
• Courts have developed new and developing grounds for judicial review such as legitimate expectations, proportionality, consultation, and breach of Human Rights Act 1998
• Parliamentary Sovereignty


  Judicial review upholds it by ensuring the government acts within the limits of its legal powers
• Rule of Law


  Judicial review upholds it by ensuring the government acts in accordance with legal principles
• There is a struggle for power between governmental institutions, with the government potentially seeking to pass emergency legislation to undermine the effect of judicial review decisions
• Judicial review


  A procedure through which the courts determine the lawfulness of the exercise of executive power
• Judicial review


  • Involves a challenge to the legal validity of a decision and not the substantive merits of the case
  • Deals with the actions of a public body as opposed to a private body
  • A claimant must have standing (locus standi) to bring a claim
• Grounds for judicial review outlined by Lord Diplock


  • Illegality
  • Irrationality
  • Procedural impropriety
• Procedural impropriety


  "justice must not only be done, but must manifestly and undoubtedly be seen to be done" (ex p. McCarthy)
• Rule against bias


  • Nemo judux in causa sua - let no man be a judge in his own cause
  • Bias/or appearance of bias (actual bias, rarely arises & is difficult to prove)
  • Automatic disqualification (for pecuniary or proprietary interest)
  • Apparent bias: 'The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased'
• If a right of appeal exists through another avenue, that must be exhausted by a claimant
• Factors a court may consider in exercising discretion to proceed with JR even where an alternative remedy exists


  • Whether the alternative statutory remedy will resolve the question at issue fully and directly
  • Whether the statutory procedure would be quicker, or slower
  • Whether the matter depends on some particular or technical knowledge
• Remedies available through judicial review


  • Public law remedies (prerogative orders): quashing orders, mandatory orders, prohibiting orders
  • Private law remedies: declarations and injunctions
  • Damages (rarely awarded)
• Quashing order


  Strikes down a decision, rendering it null and void
• Quashing order


  • Decision maker may be redirected to reconsider the matter in accordance with the order
  • May include a provision for a suspended order - quashing not to take effect until a date specified in the order
  • May remove or limit any retrospective effect of the quashing
• Prohibiting order


  Prevents public authority from implementing impugned decision or an inferior court or tribunal from carrying out an act which is beyond its jurisdiction
• Mandatory order


  Compels a public authority to perform a statutory or common law duty
• Mandatory order


  • Courts will avoid making such orders where possible due to their compulsory nature
• Declaration


  An authoritative statement by the court of the legal position on an issue in a case
• Injunction


  Prevents execution of the impugned decision
• Injunctions


  • Prohibiting injunction - prohibits the performance of a specified act
  • Mandatory injunction - orders the performance of a specified act
  • Interim injunctions - temporary suspension of the execution of a decision