A judicial review is the exercise by the court of its inherent power to uphold the rule of law, making it possible to challenge any decision, action or failure to act by a public body. Crucially, it is a review, not an appeal. In other words, the question before the court is not whether the public body made the 'right' decision, but whether it acted lawfully in making that decision.
To determine if a decision might be challenged as unlawful, the following questions need to be asked. First, was there a legal power to make the decision? Did the decision-maker take into account all relevant considerations, ignoring all irrelevant ones? Second, was the decision rational or was it one that no reasonable person could have taken? Third, was the decision, and the way in which it was taken, fair? Did all those involved have a genuine opportunity to put their sides of the argument? Was any consultation exercise genuinely and properly conducted? Did the decision contradict a legitimate expectation? Finally, did the decision contravene human rights?
Judicial review is a two-stage process. First, a claimant must obtain permission from a High Court judge to proceed, and only then is the public authority required to produce the full justification for the decision. Interestingly, the statistics show that in 2006, permission for judicial review was granted in only about 22 per cent of cases, a lower proportion than in previous years. This might suggest that judges are getting tougher about sifting out 'time wasters'. But where permission was granted, 42 per cent of cases went on to succeed at the substantive hearing.
One very important point to remember is that challenges must be brought promptly and, in any event, within three months. Judicial review can be a relatively quick and high-profile way of calling public bodies to account. As such, it seems likely that we will continue to see more such challenges by charities in the future.
- Richard Langley is a partner and head of litigation at Bircham Dyson Bell.