The cheats guide to Judicial Review

Public Law lectures were never well attended back in the day. They always seemed to clash with the morning after the best student night and if you did make it, then it was such a struggle to stay awake. Coffee wasn't invented then you see.

So who would have thought Public Law would become the new rock 'n roll in 2016? That three of the country's most senior judges would be given the same treatment the Sex Pistols did when they brought punk rock into the mainstream four decades ago. 

Purists can find the full judgement and summary online and yes, Factortame did get a mention. But with the appeal set for the 5th December, if your memory is hazy or you haven’t got a clue what all the fuss is about then here's an opportunity to score some points in the pub after work or over coffee in Costa.

What is Judicial Review?

According to the Courts and Tribunals Judiciary website “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.”

Judicial Review is not really concerned with the decision itself but rather the process. And can only be applied to decision processes undertaken by public bodies such as central and local government.

Chances of success?

On the face of it the recent Brexit judgement was an against all odds victory; according to recent statistic published by the MOJ there is a 1% success rate for Judicial Review applications. However having got to the final hearing the appellants’ chances improved. The UK Human Rights Blog using MOJ data claim that although around 3% of cases lodged make it to a final hearing the success rate for claimants at trial is actually around the 36% mark, or if you were a betting person then 2 to 1 against winning.

Procedural requirements

Applications must be made promptly which usually means within 3 months of the original process or decision being made. Box ticked in the Brexit appeal as the application was made in July 2016 not long after the referendum result was announced.

No place for busy bodies

The court will test whether an individual or group has been directly affected by the decision. This is known as having locus standi or standing and in its simplest form it is used to weed out timewasters and vexatious litigants.

In IRC v National Federation of Self Employed and Small Businesses [1982] AC 617 the House of Lords held that standing should be considered in two stages. Firstly, at the leave stage the court should refuse locus standi to anyone who appears to be a mere busybody or mischief maker (per Lord Scarman). Secondly, if leave is granted, the court may consider standing again as part of the hearing of the merits of the case, where it may decide that in fact the applicant does not have a sufficient interest.

In R v Independent Broadcasting Authority, ex parte Whitehouse (1984) Times 14 April, a television licence holder was found to have sufficient standing to challenge a decision to broadcast a controversial film. It was indicated that every television licence holder would have locus standi in litigation relating to the broadcast of programmes likely to give offence.

In the Brexit appeal, R v Secretary of State for Exiting the European Union the judges were satisfied that the claimants ticked this box “It is not difficult to identify people with standing to bring the challenge since virtually everyone in the United Kingdom or with British citizenship will ... have their legal rights affected if notice is given under Article 50.”

Is the decision amenable to judicial review, is it a public law matter?

In R v Secretary of State for Exiting the European Union neither side contended this. The reach of Judicial Review was extended to private bodies exercising public functions in R v Panel on Take-overs and Mergers, ex parte Datafin plc in 1986.

Grounds for review

It is generally accepted that there are 4 grounds for review. See Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 or the GCHQ case as it is known and R v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators (1972). Those grounds are

Illegality

Irrationality (Unreasonableness)

Procedural impropriety

Legitimate expectation

According to Mishcon de Reya, the decision to trigger article 50 rests with Parliament under the UK constitution. The Secretary of State for Exiting the European Union argued that the prime minister could use powers based on the royal prerogative. The grounds for review were therefore illegality also known in old legal speak as ultra vires, Latin meaning beyond one's legal power or authority.

See Hammersmith and Fulham London Borough Council v Hazell the House of Lords where it was held that interest rate swaps entered into by local authorities were ultra vires and void and R v Secretary of State for the Home Department, ex parte Venables where it was found that the Home Secretary had acted unlawfully when imposing a minimum sentence for the child murderer Jon Venables, the law imposed a duty to have regard to the welfare of the child or young person by requiring ongoing review of the tariff period.

Remedies

If his application for judicial review is successful the court may grant the following remedies

·         Quashing order

·         Prohibiting order

·         Mandatory order

·         Declaration

·         Injunction

·         Damages

In R v Secretary of State for Exiting the European Union the courts made a declaration that the Secretary of State for Exiting the European Union did not have the power under the Crown’s prerogative to give notice under Article 50 of the TEU. They clarified the law because the action was pre-emptive rather looking at a decision in retrospect..

The government’s appeal against the decision begins on the 5 December and is expected last 3 days. Judgment is expected by the end of December.