Public bodies and judicial review
When public bodies, whether at local or national level, carry out their functions and make decisions they have to do so in accordance with the law. There are a variety of legal principles which they have to follow and a failure to do so renders many decisions or even action or inaction potentially unlawful.
Judicial review is a process by which the courts review the lawfulness of a decision (or lack of a decision) or action taken (or failure to act) by a public body. It is the mechanism by which a judge considers whether a public body has acted in accordance with its legal obligations and if not, whether to take steps to undermine it.
Environmental judicial reviews
There are special rules for environmental cases arising under European and international law. The UK is a Party to the UNECE Aarhus Convention, which covers access to environmental information, public participation in decision-making and access to justice in environmental matters. For example, environmental Non-Governmental Organisations (NGOs) automatically have the right to bring cases to court whereas others have to be able to show that they have been affected by a decision. Also everyone with an arguable environmental case – be they an individual or a group - should be able to pursue environmental legal action at reasonable cost.
The Government has currently only extended these safeguards to cases against public bodies. Environmental disputes between neighbours (such as nuisance) are not necessarily covered by the same regime.
Bodies that can be judicially reviewed
The sort of public bodies whose decisions/conduct can be challenged include:
- Government ministers and government departments;
- Local authorities;
- Quangos such as Natural England and the Environment Agency;
- Regulatory and supervisory bodies; and
- Some tribunals.
Judicial review is only available when there are no alternative ways by which the dispute can be resolved. If, for example, there is an internal appeal or complaints procedure or a statutory right of appeal, these may be considered “alternative remedies” by the court. If an alternative remedy is available the court is likely to refuse to hear a judicial review application.
However, it is important to remember that an alternative remedy must be meaningful. If the alternative route by which the dispute could be resolved does not, for example, deliver a quick enough result or the decision made by the body/individual reviewing the decision is not binding, it is arguable that the alternative remedy is not appropriate and judicial review would be appropriate. The question whether an alternative remedy precludes the availability of a judicial review application is not straightforward and it is best to seek expert advice from a lawyer specialising in public law before deciding whether to take legal action or not.
Grounds of Challenge
The different grounds
Decisions by public bodies can be challenged on a number of grounds. For example if:
- the public body does not have the power to make a particular decision;
- it has used a power which it does have for an improper purpose;
- the decision is irrational;
- the procedure followed by the public body is unfair or biased;
- the decision taken is in breach of the Human Rights Act;
- the decision taken is in breach of European Community Law;
- it failed to comply with one of its legal duties, for example, the public sector equality duties.
These grounds can be grouped under the following headings:
Illegality: A public body must understand and apply the law that regulates its decisions and actions. For example: it is likely to unlawful if a public body refuses to make a decision because of a mistaken belief that the law does not allow it to do so; or if the public body takes into account irrelevant factors when making a decision; or if it fails to take account of relevant factors when doing so.
Irrationality: It is unlawful for a public body to make a decision which is so unreasonable as to be perverse or irrational. This is difficult argument to win in court, as the threshold for irrationality is extremely high. Lord Green stated in the case of Wednesbury that for a decision to be irrational it must be, “a decision… so unreasonable that no reasonable authority could ever have come [to] it.” Only then could “the Courts interfere… but to prove a case of that kind would require something overwhelming.”
As with alternative remedies, it is not always easy to tell whether a decision or action taken by a public body is irrational. One way to approach this question is to apply the “bloody hell” test. If a decision seems particularly outrageous, it is worthwhile seeking advice from a lawyer specialising in public law about whether a judicial review may be possible.
The test under European Law or the Human Rights Act is easier - in this case the relevant test is proportionality. In order to act proportionately, a public body must undertake a balancing exercise between legitimate aims of the state on the one hand and the protection of individual rights and interests on the other.
Unfairness: Public bodies should not act so unfairly as to amount to an abuse of power. This means that if there are clear procedures a public body is required to follow, it must do so. Similarly, public bodies must not breach the rules of “natural justice”, for example a public body must act impartially and be seen to do so. There must be a “fair hearing” before a decision is made, although this does not always literally mean an oral hearing. Fairness also demands that the public body gives reasons for its decisions.
Taking legal action and the Judicial Review Procedure
If you think a decision taken by a public body is potentially unlawful the following steps should be taken as a matter of urgency.
- Find somebody affected by the public body’s decision willing to take legal action. This can be an individual or an NGO which represents the interest of a group of individuals or concerns.
- Request and obtain as much documentation as you can about the decision, for example copies of the minutes of meetings at which the public body made the decision, any press releases or press cuttings about the decision, any relevant correspondence with the public body about the decision.
- Obtain legal advice/help in order to write a letter before claim.
- DO NOT DELAY! It is extremely important that you act quickly. The time limit to bring a judicial review application is promptly or in any event within three months from the date of the decision. In planning cases, judicial reviews must be brought within 6 weeks of the date of the decision.
Letter before claim
If you have grounds to start a judicial review, the case is likely to proceed as follows:
1. The individual or NGO who is bringing the challenge (the claimant) is normally required to send a letter before claim to the public body (the defendant). It should also go to any developer, polluter or other body or person with an interest in the case (the interested party). This letter needs to set out details of the decision and the reason why the claimant believes it is unlawful. It also needs to state what the claimant wants the defendant to do and within what time scale. A deadline by which the defendant needs to respond to the letter should be set. It must state that judicial review proceedings will be issued if a satisfactory response if not received within that time limit. Normally, this time limit is 14 days (although it can be shortened for more urgent cases).
2. Normally within 14 days the defendant must respond and set out, either the basis upon which it considers the decision to be lawful and why the claimant’s arguments are wrong, or it should agree to reverse its decision and/or enter into negotiations with the claimant about terms of a possible settlement.
Application for permission
3. If there is no response to the letter before claim or the response is unsatisfactory, an application to the Administrative Court (part of the High Court) for permission to bring judicial review proceedings should be considered. This must be served on the defendant and interested party. There is a £60 court fee to be paid.
4. Depending on whether the defendant/interested party agrees to put its decision on hold pending the outcome of the legal challenge, the claimant may need to ask for an urgent order from the court preventing them from taking any further steps that will prejudice his or her case. This request should be made in the application form and an urgent decision by a judge on the papers requested.
5. The defendant/interested party then normally file and serve an acknowledgment of service and summary grounds of resistance, a document which sets out the basis upon which they intend to defend the claim.
6. Having considered all the documents, a judge will then decided on the papers (first) whether the claim is ‘arguable’ and the claimant should be granted permission to proceed to a full judicial review hearing.
7. If permission is refused the claimant can ask for the decision to be reconsidered at an oral hearing, unless the court has identified it as ‘totally without merit’. This request must be made within 7 day of their notification of the judge’s decision on the papers.
8. If permission is refused again at the oral hearing, the claimant can appeal to the court of appeal which also must be done within 7 days. However, the permission of the court of appeal is required before an appeal can be heard, so again this is a two stage process.
The substantive (main) judicial review hearing
9. If permission is granted, the parties then all prepare for the full substantive hearing.
10. The claimant must lodge a further fee of £215 within 7 days of service of the judge’s decision.
11. Within 35 days, the defendant/interested party must file and serve their evidence and detailed grounds of resistance setting out in greater detail the basis upon which they intend to contest the claim and any written evidence they wish to rely on.
12. The substantive hearing will then take place where a judge will consider the claim in detail. This can be several months from when the claim was first issued, although this again will depend on the urgency with which the case needs to be resolved. Complex environmental claims may be heard quickly.
13. The hearing can last a couple of hours or several days depending on the complexity of issues involved. There is usually no oral evidence and the claimant does not have to attend court.
14. The court then normally provides a fully reasoned decision in writing some days or weeks after the hearing, although again this can be done immediately after the hearing if urgency requires.
15. Either party can appeal against the court’s decision to the court of appeal. However, as mentioned above permission to appeal will be required. An application for permission to appeal has to be made within 21 days of the administrative court’s decision.
If Successful, what will you gain from a Judicial Review Challenge?
Types of orders
If an application for judicial review is successful the court has the following potential orders it can grant to the claimant:
- Quashing orders: the original decision is declared invalid, it is struck down and the public body has to take the decision again;
- Prohibiting orders: the public body is forbidden from doing something unlawful in the future;
- Mandatory orders: the public body is ordered to do something specific which it has a duty to do;
- A declaration, for example on a way to interpret the law in the future or a declaration that legislative provision is incompatible with the Human Rights Act;
This remedy is rarely provided in public law but damages can be awarded, for example where a public body has breached an individual’s rights under the Human Rights Act.
Remedies are discretionary
However, it is important to realise that all the remedies listed above are discretionary. The judge does not have to provide the claimant with any remedy at all, even if the claim is successful. For example, if a claimant’s conduct is considered unreasonable because he or she did not apply for a judicial review quickly enough the court may decide that no remedy should be awarded as a result.
Carry on campaigning!
It is important to remember that the best outcome in successful judicial review is likely to be that the public body’s decision is quashed. In these circumstances, it is likely the public body will go on to reconsider the question or issue again. In order to try and prevent the public body from making the same decision again you will have to win the political argument about why the original decision was wrong.
This is particularly the case in environmental challenges. Such cases do not have high success rates because they often raise complex points of European law. It is therefore very important to ensure your legal challenge is supported by a wider campaign of public action.