JUDICIAL REVIEW PRELIMINARIES AND PROCEDURE
Introduction to Administrative Law and Judicial Review
The mandate and missions of the State administration requires that government, local authorities or courts are able to use special public prerogatives for example to purchase property compulsorily or to impose imprisonment. These powers are, of course, granted to public authorities almost exclusively by means of statutes which – at least in theory – delineate the extent and scope of those powers.
Judicial review is often seen as the major way in which the legality of administrative action is controlled. It is the cornerstone of administrative law. This is the mechanism by which the courts are able to scrutinise the decision-making processes and the legality of actions or decisions taken by public authorities and officials. Under judicial review proceedings, judges are thus capable of examining the legality of public decisions.
Similar procedures exist in a large number of other European states. This is an approach which stresses the role played by the law in the control of administrative activities, and is underpinned by the doctrine of ultra vires which imposes on public bodies the obligation to lawfully act within the limits of the powers given to it.
Historically, the massive expansion of the administrative state over the last hundred years, with the state taking on responsibility for education, health provision, energy, social services and housing; logically imposed on public bodies to operate within the bounds of legality. Consequently, administrative law is defined as the legal framework through which public bodies may deliver better, in other words more transparent and fair, public services.
Judicial review has evolved along with important jurisprudential developments in the 1960’s. Initially restricted to certain domains, it now touches almost every aspect of public decision-making such as, for example: planning, financial services, immigration and asylum, public transport, social security, university discipline, controls on broadcasting, and environmental regulation.
JUDICIAL REVIEW PRELIMINARIES AND PROCEDURE
The definition and objectives of Judicial Review
In the words of H. Barnett: “Judicial review represents the means by which the courts control the exercise of governmental power. Government departments, local authorities, tribunals, state agencies and agencies exercising which are governmental in nature must exercise their powers in a lawful manner”. Accordingly, as stated earlier, the rationale behind judicial review stems from the core principles of the Rule of law.
The Rule of law imposes on rulers to respect and act in compliance with law. As a result, for example, those exercising power can only act on the basis of a legal provision, subjected to the will and limited to the terms provided for by Parliament, as a justification of their action. Judicial review ensures that this principle is respected. Lord Phillips famously stated: “The common law power of the judges to review the legality of administrative action is a cornerstone of the rule of law in this country and one that the judges guard jealously”.
Throughout the development of case law on judicial review, key elements of this procedure have arisen. Firstly, judicial review can be brought against one or several bodies, regardless of their rank in the hierarchy of the administration (from a Secretary of State to a Parole Board). We will see below that judicial review proceedings may also be introduced against bodies that are not, in a strict sense, public authorities.
Judicial review is not confined to “executive actions” of governmental bodies; it can also include reviewing the decision-making process of judicial bodies of inferior courts. It should be noted that judicial review, technically speaking, is brought in the name of the Crown.
JUDICIAL REVIEW PRELIMINARIES AND PROCEDURE
Procedure in Judicial Review
The claimant (formerly the applicant) for Judicial review preliminaries and procedure, before bringing his case to the Court, should try to achieve a settlement with the public body. The Pre-action protocol requires the claimant to first write to the future defendant identifying the issues at stake. The claim for should be transmitted to the Court containing the public law decision being challenged and the remedy sought.
The second phase of the procedure is permission to apply for judicial review. This is a filtering system which requires claimants to ask the Court for permission to apply. In practice, permission is granted to arguable cases. Indeed, it is a first prima facie assessment of the merits of a case. If the permission is rejected, the claimant can request reconsideration at an “oral renewal”. If this is again rejected, the claimant can appeal to the Court of Appeal.
Most of the cases are rejected at the permission stage. In 2015, the Ministry of justice said that: “The proportion of all cases lodged found in favour of the claimant at a final hearing has reduced (…) to 1% in 2013 and has remained the same in 2014”. However, it should be noted that it also reported that the vast majority of cases that settled (before the permission at the pre-action stage) did so in favour of claimants.
The final stage, the substantive hearing, enables the Court to assess whether or not the defendant has infringed one or more of the grounds of judicial review. The assessment of the grounds of review will be studied in the next chapters. It should be noted, however, that it rests on the claimant to prove that the defendant has acted unlawfully.
JUDICIAL REVIEW: THE PROCEDURE
Summary
Judicial review is often seen as the major way in which the legality of administrative action is controlled. It is the cornerstone of administrative law. Judicial review is the mechanism by which the courts are able to scrutinise the decision-making processes and the legality of actions or decisions taken by public authorities and officials.
The Rule of law imposes on rulers to respect and act in compliance with law. Accordingly, the rationale behind judicial review stems from the core principles of the Rule of law.
The purpose of judicial review was not to question a decision itself. Courts should not serve as appellate jurisdictions but rather as operators of a review of the legality of decision-making processes.
As a general rule, only public law decisions are amenable to judicial review. Judicial review can be brought against any public body, regardless of their rank in the hierarchy of the administration.
Judicial review also represents a possible course of legal action against decisions of non-governmental bodies exercising public law powers. Powers which are sufficiently public in nature are powers that the administration of the State would have to exercise in the absence of performance by a private body.
A claimant should have sufficient interest in judicial review. This is the traditional locus standi which is one of the first requirements for introducing any legal proceedings. Individuals, groups and public bodies may have sufficient interest to seek judicial review.
The exclusivity principle provides that public law rights should be enforced through judicial review. This principle is subject exception is subject to several exceptions which allows for a flexible application.
In principle, judicial review is not granted if an alternative remedy is available to the claimant.
The time limit to bring a judicial review is 3 months after the grounds to make the claim first arose. Since 2013 and following the 4th Amendment of the Civil Procedure, special rules regarding time limit for judicial review apply to planning decisions (6 weeks) and public procurement (30 days).
The Pre-action protocol requires the claimant to first write to the future defendant identifying the issues at stake in order to try to achieve a settlement. The second phase of the procedure is permission to apply for judicial review.
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