You can download this Explainer as a PDF here.

On the 31 July, the UK Government launched an independent review of judicial review process. A panel of six legal experts “will examine if there is a need to reform the judicial review process”.

 

What is Judicial Review?  

This panel has been set up to look at judicial review.

Judicial review is a type of legal case where a judge (or judges) reviews the lawfulness of a decision or action made by a public authority. Public authorities include, local councils, government departments and Ministers, police forces, regulators (such as the CQC) and health authorities. The judge does not decide if the original decision by the public authority was right or wrong; instead they look at the process of the decision making.

 

Who can bring a judicial review case?

 A judicial review case can be brought by a person (or group of people or organisation) that has been affected by the decision of the public authority. It can be expensive to bring a judicial review legal case. Legal aid, which is financial assistance for legal advice and representation, may be available, but for judicial review this has been limited in recent years. Legal aid in this situation is usually limited to people who receive a means-tested benefit.

 

What are the time limits for bringing a judicial review case?

There are also strict time limits on people to apply to the courts to bring a judicial review. For cases about planning decisions a judicial review application has to be made within 6 weeks of the decision. For other situations an application for judicial review must usually be made within 3 weeks.

 

What are the grounds for judicial review?

The lawfulness of the decision can be challenged for three reasons (called grounds). These are because:

  • The public authority did not have the power to make the decision, or if they did have that power they did not consider relevant information or restrict themselves to applying a rigid policy without discretion to look at other relevant factors.
  • The decision is irrational. This means the decision is so unreasonable that no reasonable public authority would have made it (this is sometimes called Wednesbury unreasonableness).
  • The public body has not followed fair procedures in making the decision, this includes making sure the decision is impartial.

In addition to these three grounds, the lawfulness of a decision can also be challenged using judicial review if that decision breaches human rights law. This is where a public authority has made a decision that does not uphold, or might risk, the protections everyone has under the Human Rights Act. Under this law, public authorities have a legal duty under the HRA to respect and protect in their decision-making. If they do not meet this duty, then decisions can be challenged in the courts. 

 

What happens at the end of a judicial review case?

At the end of a judicial review case, if the person’s case has been successful, the judge will usually “quash” or nullify the original decision. This means the decision needs to be made again. However, the judge does not replace the original decision with what they think is a better decision. Instead the decision will have to be made again, by the public authority, but this time following the right process. This means that the public authority might make the same decision again if they follow the right process (i.e. if the decision has been made lawfully).

 

When can judicial review be used? 

Judicial review can only be used where there are no better ways of challenging a decision such as a separate right of appeal against the decision. For example, if you want to challenge a decision that has been made about your welfare benefits you normally have the right to appeal to a tribunal. These alternatives usually have to be followed before bringing a judicial review.

 

Why is the panel looking at Judicial Review?

The Conservative party won the General Election in 2019, which means they are now the government. In their election manifesto for those elections, the Conservative party made a commitment that if elected they would look at “the broader aspects of our constitution”, including judicial review and the Human Rights Act.

The manifesto initially said this work was going to be called the “Constitution, Democracy & Rights Commission”. However, it appears that this has been replaced by panels such as the Judicial Review panel that will look at specific areas.

 

What will the Judicial Review Panel look at?

The things that the panel will look out are set out in its “terms of reference”. These include:

  • Whether the reasons (or grounds) for bringing a judicial review should be codified. This means put into a written down law. At the moment the three grounds for judicial review, outlined above, are part of the Common Law. These means they have been set down in legal cases over a long period of time and become principles of our legal systems. A lot of rules and procedures for legal cases in the UK are part of Common Law.
  • Whether the of the category of justiciable matters (the situations where a judicial review of a decision can take place) should be restricted. The means looking at changing what public authority decisions can be challenged by people.
  • Whether the law of standing (who can bring a judicial review) should be altered. This means looking at changing what people can challenge decision by public authorities.

 

Who is on the Judicial Review Panel?

Lord Faulks QC is the Chair of the Panel Chair. He was a member of the Commission on a Bill of Rights (2011 – 2012) which considered whether a British Bill of Rights was required; the Commission did not reach a unanimous position. He was previously a Minister in the Ministry of Justice, in David Cameron’s government.

Professor Carol Harlow QC, is an Emeritus Professor of Law at the London School of Economics.

Vikram Sachdeva QC is a barrister at 39 Essex Chambers. He is the Chair of the Constitutional and Administrative Law Bar Association, and also of the Court of Protection Bar Association.

Professor Alan Page is a Professor of Public Law at Dundee University

Celina Colquhoun is a barrister at 39 Essex Chambers.

Nick McBride is a Fellow of Pembroke College, Cambridge.

 

Which Human Rights Are Involved?

Judicial review is a very important process for protecting our human rights here in the UK. For more information about your human rights and how they are protected please visit our Human Rights Information Hub.

One of the reasons why a judge can find a decision of a public authority unlawful is if the decision is in breach of Human Rights Act. If the judge finds that the decision breaches someone’s human rights it will be like the decision was never made and the decision-making process will have to happen again.

Judicial review, or the threat of judicial review, helps give our legally protected human rights “teeth”, it is part of what makes them enforceable. Judicial review means that people who feel like a decision made by a public authority has breached their human rights, can challenge this. Really importantly, the potential that a person can bring a judicial review case encourages public authorities to use good decision-making processes in the first place. This means the value of judicial review is not only about the legal cases that are taken, but is also about preventing (or changing) bad decisions to avoid judicial review. Ultimately this is an important way of protecting and respecting the human rights of the people the decision will affect, and all of us, by getting the processes as right as possible in the first place.

 

Examples of judicial reviews that have protected our rights

Past judicial reviews have been important in protecting the human rights of many people in the UK. For example:

  • In 2019 a man who lived his disabled partner (that needed a room for medical equipment and supplies) was told that because they live in rented social housing as a couple, they would only need 1 bedroom and their housing benefit payments to cover the second bedroom are reduced (the so-called "bedroom tax"). The man challenged this decision using judicial review, the court found that decision to reduce the housing benefit would breach the man’s human rights and was unlawful. This decision not only changed the life of the man who took the judicial review to court, but also the lives of over 100 people in a similar situation. You can read more about this case here.

  • In 2018, the Supreme Court ruled that the police have a duty to investigate properly reported crimes of serious violence. In this case, two victims of John Worboys (the black cab driver responsible for a large number of sexual offences) reported their attacks to the police in 2003 and 2007. However, the police did not investigate the attacks properly and Worboys was able to continue attacking women until 2009. By failing to undertake a proper investigation, the women were exposed to inhuman and degrading treatment (Article 3). Again, this decision changed the lives of many people, showing that even when crimes are committed by a private citizen, the state can still be held to account. It is not enough to simply have the right processes and policies in place, failures in investigations can also breach the law. You can read more about this case here.

 

Examples of judicial reviews protecting our rights during Covid-19

A number of cases have been announced or started during Covid-19, to make sure that Government policies and decision by local services do not treat people unfairly in the response to pandemic. For example:

  • In March 2020, a proposed judicial review challenge to the National Institute for Health and Care Excellence (‘NICE’) COVID-19 guideline for clinical care secured important changes to protect the rights of Autistic people, people with learning disabilities, and/or mental health issues from discrimination when accessing critical care. This protected the right to life, and the right not to be discriminated against of potentially thousands of people across the UK.

 

What are the main causes for concern?

When the Government announced the panel, the Justice Secretary, Robert Buckland, said judicial review is “an essential part of our democratic constitution – protecting citizens from an overbearing state”. But he also said the government wants to make sure it is “not abused or used to conduct politics by another means”. David Lammy, the Shadow Justice Secretary, said the government review is “a blatant attempt to disempower the public and hoard more power.”

There some concerns that the Panel has been announced at a time when there are judicial reviews looking at decisions that have been made about important issues such as buying PPE (personal protective equipment, such as masks for healthcare workers), and other decisions around Covid-19. More generally, there is also concern about a Government seeking to limit the power of people to hold them to account. Checks and balances are already part of the system; for example, not all applications for judicial review will be heard, they need to be admissible first; and courts cannot substitute their own decisions for the original decision.  

There are also some concerns about the independent nature of the panel. For example, the chair of the panel, Lord Faulks QC, has previously written articles that have been critical of judicial review:

It is important to note that Lord Faulks is joined by five other legal experts on the panel.


What happens now?

According the government website, the panel “will examine a range of data and evidence, including relevant caselaw, on the development of judicial review and consider whether reform is justified”. At this stage there is no more information about how the panel will work or engage with people.

The panel will report back later this year.

 

Where can I find more information?

PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.