11.1.2 Judicial Review lecture

A. Introduction

One of the main objectives of judicial review is to hold the government to account.

Part 54.1 of the Civil Procedure Rules defined judicial review.

B. The History of Judicial Review

A series of coherent principles of judicial review were established during the 1960s, led by Lord Reid.

C. Grounds for Judicial Review

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.

E. Distinguishing between Judicial Review and Appeal

The distinction between judicial review and appeal proceedings relates to the power of the court.

F. The Human Rights Act 1998 and Judicial Review

Section 3 of the Human Rights Act 1998 (HRA) requires that courts read and give effect to legislation in a way that is compatible with rights and freedoms under the European Convention on Human Rights (ECHR).

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.

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.

G. Judicial Review in Practice

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

The claim for judicial review procedure in England and Wales is set out in part 54 of the Civil Procedure Rules.

ii. Does the Claimant Have Standing?

Claimants must show that they have sufficient interest in a matter to bring judicial review proceedings in respect of it.

iii. Permissions stage

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.

iv. The Hearing

A single judge commonly conducts the hearing. 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).

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.

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.

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.

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