What is judicial review?
Judicial review is a type of court proceeding by which a person who has been affected by a decision, action or failure of a public body, can make an application to court to review the lawfulness of the decision. Judicial review is not concerned with the merits of a decision and whether the conclusion that was reached was "right", but rather, whether the public body acted lawfully.
Which decisions can be judicially reviewed?
Decisions made by public bodies can be judicially reviewed. This includes, for example: 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; decisions of regulatory bodies; and decisions relating to prisoners' rights.
When will a public body be considered to have been acting unlawfully?
There are several grounds for judicial review, and a public body may be considered to be acting unlawfully if it has made a decision or taken an action:
- Unlawfully (without the legal power to do so). The decision maker must understand the law that regulates the decision and must give effect to it. A decision can be considered unlawful for many reasons but can include, for example, where the decision was made by the wrong person, where there was an error of fact or law in the decision, where the decision exceeds the powers given to the decision maker, where relevant considerations were ignored and irrelevant considerations were taken into account, or where the decision was made in a way that fetters the discretion of the decision maker.
- Irrationally (in a way that is so unreasonable that no reasonable decision maker could have come to the same decision or done the same thing); or
- Where there has been procedural impropriety (where a decision was made without observing the rules of natural justice or where there was procedural impropriety or unfairness).
What remedies can be secured through judicial review?
- If the court finds that the public authority has acted unlawfully, it may:
- Make an order requiring the public body to do something (a "mandatory order");
- Make an order preventing the public body from doing something (a "prohibiting order");
- Make an order quashing the public body's decision (a "quashing order");
- Make a declaration; or
- Award damages (though an award of damages is rare).
There is a three-month deadline for making an application for judicial review, from the date of the act or omission that is being challenged, although there is an obligation on the person wishing to make an application to act promptly.
