Judicial review is a part of UK constitutional law that enables people to challenge the exercise of power, usually by a public body. A person who contends that an exercise of power is unlawful may apply to the Administrative Court (a part of the King's Bench Division of the High Court) for a decision. If the court finds the decision unlawful it may have it set aside (quashed) and possibly (but rarely) award damages. A court may impose an injunction upon the public body.
When creating a public body, legislation will often define duties, limits of power, and prescribe the reasoning a body must use to make decisions. These provisions provide the main parameters for the lawfulness of its decision-making. The Human Rights Act 1998 provides that statutes must be interpreted so far as possible, and public bodies must act, in a manner which is compliant with the European Convention on Human Rights and Fundamental Freedoms. There are common law constraints on the decision-making process of a body.
Unlike in some other jurisdictions, such as the United States, English law does not permit judicial review of primary legislation (in particular, Acts of Parliament), even where primary legislation is contrary to EU law or the European Convention on Human Rights. A person wronged by an Act of Parliament therefore cannot apply for judicial review if this is the case, but may still argue that a body did not follow the Act.
Constitutional position The English constitutional theory, as expounded by A. V. Dicey, does not recognise a separate system of administrative courts that would review the decisions of public bodies, as in France, Germany and many other European countries. Instead, it is considered that the government should be subject to the jurisdiction of ordinary common law courts.
At the same time, the doctrine of Parliamentary sovereignty does not allow for the judicial review of primary legislation (primarily Acts of Parliament). This limits judicial review in English law to the decisions of officials and public bodies, and secondary (delegated) legislation, against which ordinary common law remedies, and special "prerogative orders", are available in certain circumstances.
The constitutional theory of judicial review has long been dominated by the doctrine of ultra vires, under which a decision of a public authority can only be set aside if it exceeds the powers granted to it by Parliament. The role of the courts was seen as enforcing the "will of Parliament" in accordance with the doctrine of Parliamentary sovereignty. However, the doctrine has been widely interpreted to include errors of lawAnisminic v Foreign Compensation Commission 2 AC 147 and of fact and the courts have also declared the decisions taken under the royal prerogative to be amenable to judicial review.Council of Civil Service Unions v Minister for the Civil Service AC 374 Therefore, it seems that today the constitutional position of judicial review is dictated by the need to prevent the abuse of power by the executive as well as to protect individual rights.
Procedural requirements
Under the Civil Procedure Rules a claim (application) for judicial review will only be admissible if permission (leave) for judicial review is obtained from the High Court, which has supervisory jurisdiction over public authorities and tribunals. Permission may be refused if one of the following conditions is not satisfied:
The application must be made promptly and in any event within three months from the date when the grievance arose. Note that legislation can impose shorter time limits while a court may hold that an application made in less than three months may still be not prompt enough. The applicant must have a sufficient interest in the matter to which the application relates. This requirement is also known as standing or, historically, by the Latin phrase . The application must be concerned with a public law matter, i.e. the action must be based on some rule of public law, not purely (for example) tort or contract.
However, the Court will not necessarily refuse permission if one of the above conditions is in doubt. It may, in its discretion, examine all the circumstances of the case and see if the substantive grounds for judicial review are serious enough.See e.g. R (National Federation of Self-Employed and Small Businesses Ltd) v Inland Revenue Commissioners AC 617 Delay or lack of sufficient interest can also lead to the court refusing to grant a remedy after it had considered the case on the merits.R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd 1 WLR 386
The pre-action protocol states that it is usual for the claimant to write a letter before claim to the proposed defendant. The purpose of the letter is to identify the issues in dispute and to avoid litigation where possible. The protocol specifies a template for the letter. It is usual to allow 14 days for a response. The parties should also consider whether alternative dispute resolution might provide a satisfactory alternative to litigation.
Standing To bring a judicial review, a claimant must have standing. The Senior Courts Act 1981 requires that claimants must have a "sufficient interest in the matter to which the application relates". This is not merely discretionary—if the claimant lacks sufficient interest, the High Court lacks jurisdiction to grant permission to hear the claim. In some situations, legislation expressly specifies that certain parties can bring judicial review (such as potential contractors who might provide outsourced local authority services, per s.19 of the Local Government Act 1988) or places restrictions on them doing so.
Standing is relatively easy to establish in cases where a claimant seeks to challenge a decision that interferes with their rights or where it has financial costs to them. More complicated are cases brought by campaigners, charities or public interest groups: permission was granted in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte Rees-Mogg over a challenge to the ratification of the Maastricht Treaty, as well as in R v Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd over the granting of foreign aid to Malaysia to build the Pergau Dam. More recently, there has been a more restrictive attitude to standing, such as in some cases involving campaign group the Good Law Project, and the split decision in the Supreme Court over abortion in Northern Ireland.
Styling of the claimant Unlike other civil proceedings in English courts, in judicial review court papers the claimant is styled as The King (on the application of Claimant X) (or Queen when reigning). For example, The King (on the application of Claimant X) v Defendant Y or more succinctly R (on the application of Claimant X) v Defendant Y or R (Claimant Y) v Defendant Y.Para 2.4 The Administrative Court Judicial Review Guide 2018
In citations The King is usually abbreviated R (standing for the Latin regina or rex, but pronounced "Crown"), Claimant X is substituted for the name of the claimant (e.g. Helena Jones or Jones or Acme Widgets Ltd) and Defendant Y is substituted for the public body whose decision is being challenged (e.g. West Sussex County Council or Environment Agency) or in certain cases, the title of the person in charge of that body (e.g. Secretary of State for the Home Department or Chief Constable of West Yorkshire Police).Para 2.4 The Administrative Court Judicial Review Guide 2018
This is a purely cosmetic formality that arises from a historical procedure where His Majesty's Judiciary acted on his behalf in a supervisory capacity. Technically a judicial review is brought by the Crown, on the application of the claimant, to ensure that powers are being properly exercised.Para 2.4 The Administrative Court Judicial Review Guide 2018 Before 2001, judicial review cases were styled R v Defendant Y, ex parte Claimant X, but this was reformed as part of a general reduction in use of Latin legal terms and due to the fact that such hearings are not, in fact, ex parte in any meaningful sense.
Amenability to judicial review The decision complained of must have been taken by a public body, i.e. a body established by statute or otherwise exercising a public function. In R v Panel for Takeovers and Mergers, ex parte Datafin 1 QB 815, the Court of Appeal held that a privately established panel was amenable to judicial review because it in fact operated as an integral part of a governmental framework for regulating mergers and takeovers, while those affected had no choice but to submit to its jurisdiction.
Actions taken under the royal prerogative were traditionally thought to be nonjusticiable political matters and thus not subject to judicial review, but Council of Civil Service Unions v Minister for the Civil Service UKHL 9 established that they can be, depending on the purpose for which the prerogative powers are exercised.
Ouster clauses Sometimes the legislator may want to exclude the powers of the court to review administrative decisions, making them final, binding and not appealable.R (Cowl) v Plymouth City Council EWCA Civ 1935 (the fact that another, statutory but non-judicial, dispute resolution procedure was also available and had not yet been used did not oust the jurisdiction of the Court of Appeal to review the council's decision, absent a statutory provision to the contrary). However, the courts have consistently held that none but the clearest words can exclude judicial review. (that a decision of the Tribunal was, by Act of Parliament, "final" did not oust the High Court's jurisdiction to review its error of law); Council of Civil Service Unions v Minister for the Civil Service AC 374 (refuting the assumption under the common law that decisions of the Crown made under the royal prerogative were not subject to judicial review). When the Government wanted to introduce a new Asylum and Immigration Act containing such clear words, members of the judiciary protested to the extent of saying that they will not accept even such an exclusion. The Government withdrew the proposal.
The courts however do uphold time limits on applications for judicial review. (review of an order of a local authority was not available if sought after the statutory time limit specified by the Act that created the power to make the order).
Exclusivity rule The House of Lords held in O'Reilly v Mackman (1983) that where public law rights were at stake, the claimants could only proceed by way of judicial review. They could not originate their action under the general civil law procedure, because that would be avoiding the procedural safeguards afforded to public authorities by the judicial review procedure, such as the requirement of sufficient interest, timely submission and permission for judicial review. However, a defendant may still raise public law issues as a defence in civil proceedings. So, for example, in Wandsworth London Borough Council v Winder (1984) the House of Lords found that it was not an abuse of process for a tenant of a public authority to allege illegality of its decision to raise the rents as a counterclaim in the authority's suit against him for failing to pay under the tenancy contracts. He was not required to commence a separate judicial review process.