Judicial review

Judicial review is a type of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public body.

In other words, judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached.

It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed. The court will not substitute what it thinks is the ‘correct’ decision.

This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.

If you want to argue that a decision was incorrect, judicial review may not be best for you. There are alternative remedies, such as appealing against the decision to a higher court.

Examples of the types of decision which may fall within the range of judicial review include:

  • Decisions of local authorities in the exercise of their duties to provide various welfare benefits and special education for children in need of such education;
  • Certain decisions of the immigration authorities and the Immigration and Asylum Chamber;
  • Decisions of regulatory bodies;
  • Decisions relating to prisoner’s rights.

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Judicial review

What is judicial review?

The entrance to the UK Supreme Court.

What is judicial review? 

Judicial review is a kind of court case, in which someone (the “claimant”) challenges the lawfulness of a government decision.  

This can be the decision of a central government department, another government body such as a regulator, a local authority, or certain other bodies when they are performing a public function. 

If the claimant wins, then the government decision can be declared unlawful, or quashed. That will sometimes mean that the decision has to be made again. Alternatively, the court can order the government to do or not do something. 

The law which applies in cases of this kind is sometimes called “public law” or “administrative law”. In very important cases which concern fundamental rights or the relationships between democratic institutions, it is sometimes called “constitutional law”. 

On what grounds can a government decision be overturned by the courts? 

There are three main grounds of judicial review: illegality, procedural unfairness, and irrationality.  

A decision can be overturned on the ground of illegality if the decision-maker did not have the legal power to make that decision, for instance because Parliament gave them less discretion than they thought. 

A decision can be overturned on the ground of procedural unfairness if the process leading up to the decision was improper. This might, for instance, be because a decision-maker who is supposed to be impartial was biased. Or it might be because a decision-maker who is supposed to give someone the chance to make representations before deciding on their case failed to do so. 

A decision can be overturned on the ground of irrationality if it is so unreasonable that no reasonable person, acting reasonably, could have made it. This is a very high bar to get over, and it is rare for the courts to grant judicial review on this basis.  

In addition, a decision can be overturned if a public authority has acted in a way which is incompatible with human rights that are given effect by the Human Rights Act 1998. There is one exception to this, though: if the public authority is merely doing what parliament told it to do, then it is not acting unlawfully even if it does act incompatibly with one of those rights. 

A judge cannot quash or declare unlawful a government decision merely on the basis that the judge would have made a different decision, or that the decision was wrong.  

Can the courts overturn legislation in judicial review cases? 

The courts cannot overturn or quash primary legislation passed by parliament. This is because, in the UK constitution, parliament is sovereign. 

The courts can overturn secondary legislation, made by ministers, on the normal grounds of judicial review.  

How many judicial review cases are there, and how many are successful? 

In 2018, some 3,597 claims for judicial review were lodged 4 Ministry of Justice, Civil justice stats table,  https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/806900/civil-Justice-stats-main-tables-Jan-Mar_2019.x…  (commenced) in the High Court. However, most cases do not get very far, because a claimant must convince the court that they have an “arguable” case in order to be granted permission to proceed to a full hearing.  

Only 184 cases, or about 5% of total cases commenced, reached a full oral hearing in 2018. The rest were mostly refused permission to proceed, withdrawn, or resolved out of court. 

Of the cases that did proceed to a full hearing, the government body under challenge won 50% and lost 40%. The other cases were mostly withdrawn or have not yet reached a conclusion. 

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  • fatal accident inquiry
  • federal case
  • flight risk
  • power of attorney
  • the Webster ruling
  • witness to something

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What is 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 made by the public authority was right or wrong; instead, they look at the process of the decision making and decide if it was lawful and if the correct processes were used.

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, in large part due to funding cuts for legal aid for judicial review.  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 permission, 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 months.

What are the grounds for judicial review?

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

  • The public authority did not have the power to make the decision, or if they did have the power to make the decision, perhaps they made it by considering irrelevant information. It might be that they restricted themselves through a rigid policy and didn’t consider all 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 the Human Rights Act, public authorities have a legal duty to respect, protect and fulfil human rights in their decision-making. If they do not do this, then they are not meeting that legal duty and their decisions can be challenged through judicial review.

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 (making it a lawful decision this time).

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 first before bringing a judicial review. In other words, judicial review should be the last resort when challenging decisions.

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 Act 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 the 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 with his disabled partner (that needed a room for medical equipment and supplies) was told that because they lived in rented social housing as a couple, they would only need 1 bedroom and their housing benefit payments to cover the second bedroom were to be reduced (the so-called bedroom tax). The man challenged this decision using judicial review, the court found that the decision to reduce 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 over 100 people in a similar situation. 
  • In 2018, the Supreme Court ruled that the police have a duty to properly investigate 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, HRA). 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.

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 decisions 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 guidelines 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 (Article 2, HRA), and the right not to be discriminated against (Art 14, HRA) of potentially thousands of people across the UK.

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.

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