Judicial review – Courts and Tribunals Judiciary 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.
- It is not really concerned with the conclusions of that process and whether those were ‘right’, as long as the right procedures have been followed.
- The court will not substitute what it thinks is the ‘correct’ decision.
- This may mean that the public body will be able to make the same decision again, so long as it does so in a lawful way.
If you want to argue that a decision was incorrect, judicial review may not be best for you. There are alternative remedies, such as appealing against the decision to a higher court. Examples of the types of decision which may fall within the range of judicial review include:
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 and the Immigration and Asylum Chamber; Decisions of regulatory bodies; Decisions relating to prisoner’s rights.
: Judicial review – Courts and Tribunals Judiciary
How long does judicial review take in UK?
How long will my Judicial Review take? – From the point of submitting your Judicial Review to receiving a decision on the papers can be between 2-6 months. A renewal hearing may take 3-6 months to be scheduled to be heard. A full Judicial review hearing might take 4-8 months to be scheduled.
How do I get a judicial review UK?
To bring a judicial review, you need to fill in a judicial review claim form (‘N461’). You then need to file the form (send by post or bring it in person) at the relevant court building.
What is the success rate of judicial review in the UK?
Successful high court challenges to government policy and decisions by public bodies have fallen dramatically, prompting warnings that ministers’ attacks on lawyers could be having a chilling effect on judges. The proportion of civil judicial reviews in England and Wales, excluding immigration cases, which claimants won out of total claims lodged fell by 50% on 2020, according to analysis seen by the Guardian.
- The figure is 26% if the success rate is measured out of cases that went to a final hearing.
- The fall took place against a background of criticism by ministers.
- The attorney general, Suella Braverman, before taking office railed against “chronic and steady encroachment by judges” and last year said in some cases they had “strained the principle of parliamentary sovereignty”,
The lord chancellor, Dominic Raab, has warned judges against “harpooning” government infrastructure projects, Boris Johnson doubled down on attacks on “lefty lawyers” after being forced to cancel the first planned Rwanda deportation flight last week after an injunction granted by the European court of human rights (ECHR) to one of the people due to be removed.
- The prime minister responded by accusing English lawyers of “abetting the work of criminal gangs” who facilitated Channel crossings.
- Raab suggested judges at the ECHR had overreached,
- Responding to the judicial review figures, Raab’s predecessor as lord chancellor, Robert Buckland QC, said: “There’s certainly a downward trajectory on the year before – whether it’s a trend it is probably too early to say.
But I would be very concerned if judges were feeling under pressure or in any way responding directly to comments made by ministers – that would not be desirable or appropriate.” Buckland was sacked and replaced by Raab in September, with many believing he paid the price for not going further in the judicial review bill to restrict challenges to government.
In December, the Times was briefed that Johnson was planning to let ministers throw out judicial review rulings they disagreed with, although the prime minister’s spokesperson said it was “not an accurate characterisation”. A report published this month by the all-party parliamentary group on democracy and the constitution said ministers had acted improperly by questioning the legitimacy of judges when they did not get their own way and that the lord chancellor and attorney general had failed to defend the judiciary – often doing the opposite – as the pairs’ roles had become politicised.
The figures for the high court, obtained using the Ministry of Justice (MoJ) online analysis tool, show that there were 31 civil judicial reviews (excluding immigration) found for the claimant last year, the lowest since available records began in 2001, compared with 68 (the previous low) in 2020.
- The success rate last year was also the lowest on record, whether as a proportion of total cases lodged (2.2%) or those that went to a final hearing (30%).
- By comparison, the average success rates between 2016 and 2020 were 4.7% of total cases lodged and 38.9% of those that went to a final hearing.
- Jolyon Maugham QC, director of the Good Law Project, which identified the drop in the success rate and has been involved in high-profile judicial reviews against the government relating to Brexit and the VIP lane for suppliers of Covid personal protective equipment, said there was a risk the rule of law “could easily become a relic for the history books”.
He said: “The data suggests a collapse in judicial scrutiny of the government. We cannot know this is because of how ministers speak about judges and the law – but it is not easy to identify plausible alternative candidate explanations. Privately, senior judges are worried.
And they should be.” Other observers said there were already signs the supreme court had become more conservative. An analysis published by the UK Constitutional Law Association comparing last year with 2020 suggested the UK’s highest court now had more of “a tendency to reject human rights claims (only two out of 18 were successful last year) and to side with public authorities”.
In January, Patrick Hodge, the deputy president of the supreme court, spoke at an event run by the Judicial Power Project (JPP), one of the foremost critics of alleged judicial overreach, although he stated that “I don’t agree with some of the premises “.
- Jonathan Jones QC (Hon), the former head of the government legal department, said the reduction in the judicial review success rate “sounds significant” but it was difficult to draw conclusions why it had occurred.
- However, he highlighted comments by Braverman and Raab, adding: “We have also seen some more government-friendly language from the supreme court and one or two significant decisions, eg on standing,” (which limited who can challenge an alleged harm).
Conor Gearty QC (Hon), barrister and professor of human rights law at LSE, said while judges did their best, “the number of wins has always been very small, and now we see a drastic reduction in even that small percentage”. He added: “It is hard to avoid the thought that the background noise of hostility to the judges and the courts, being generated relentlessly not only by ministers but even by the attorney general herself, has had an effect.
Sign up to First Edition, our free daily newsletter – every weekday morning at 7am BST “The apparent desire of the supreme court to restrict the range of arguments before the courts and to cut back on challenging socio-economic claims may also have had some effect. These are worrying times for those who see accountability to the law as an essential feature of democracy.” A MoJ spokesperson said: “Judicial review decisions are entirely a matter for independent judges, who now have greater powers to resolve cases in a more flexible and practical way thanks to our reforms.” Three landmark judicial review cases In 2016, the high court ruled that parliament had to give its consent before the government could trigger article 50 and formally initiate Brexit, prompting criticism by ministers and the infamous Daily Mail “Enemies of the people” headline,
The decision was upheld by the supreme court which, in 2019, would rule that Boris Johnson’s prorogation of parliament during the Brexit crisis was unlawful, again angering the government. In 2017, the supreme court ruled that employment tribunal fees of up to £1,200 were inconsistent with access to justice, forcing the Ministry of Justice to scrap the fees and entitling those who had already paid them to a refund.
- In the judicial review brought by the trade union Unison, the judges also found that fees were contrary to the Equality Act 2010 as they disproportionately affected women.
- The government’s attempts to force the bedroom tax on partners of people with severe disabilities, which would have seen their housing benefit reduced by 14% for having a “spare” room, was ruled unlawful by the supreme court in 2019,
The judges said that applying the reduction to a man referred only as RR, was a breach of his right to a home under the Human Rights Act, They said RR’s partner was severely disabled so “it is accepted” that the couple needed an extra bedroom for her medical equipment.
How many judicial reviews are there in the UK?
Judicial review applications in 2022 down more than a quarter on pre-Covid baseline of 2019: Ministry of Justice There were 2,400 judicial review applications received in 2022, up 5% on 2021 (2,300) but down 28% on 2019 (from 3,400) as a pre-Covid19 baseline, the Ministry of Justice has revealed.
According to the (published on 2 March), of the 2,400 applications received in 2022, 860 were civil immigration and asylum applications, 1,400 were civil (other), and 150 were criminal, up 6%, up 4% and up 6% respectively on 2021.45 of the civil immigration and asylum cases have since been transferred to the Upper Tribunal (Immigration and Asylum Chamber or UTIAC).
More information can be, which breaks down the topics of all judicial reviews against all departments in 2022. The figures for topics include:
Town and Country Planning: 153 applications Town and Country Planning Significant: 37 Homelessness: 110 Housing: 56 Age assessment: 85 Education: 61 Community care: 22 Local Government: 17 Licensing: 11 Highways: 8
Of the applications that were made in 2022 in the period January to December, 1,200 (49%) are now closed. The Quarterly reveals that of the total applications, 1,100 reached the permission stage in 2022, and of these:
11% (120) were found to be totally without merit (TWM).390 cases were granted permission to proceed at first stage and 670 were refused at the permission stage. However, 63 of the cases refused at permission stage went on to be granted permission at the renewal stage.450 cases have been assessed to be eligible for a final hearing and of these, 86 have since been heard. of the 86 cases that reached a final hearing, 31 were found in favour of the claimant, the same number of cases found in favour of the defendant. the mean time from a case being lodged to the permission decision was 79 days, and the mean time from a case being lodged to final hearing decision was 193 days.
In Q4 2022, there were 670 judicial review applications received, up 19% on Q4 2021 (570) and down 16% on Q4 2019 (from 800) as a pre-Covid19 baseline. May 26, 2023 May 26, 2023 May 26, 2023 May 26, 2023 This book is intended to assist commercial property practitioners who handle transactions involving licensed properties.
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: Judicial review applications in 2022 down more than a quarter on pre-Covid baseline of 2019: Ministry of Justice
Can you sue the government for negligence UK?
Most claims against public authorities are brought in negligence rather than for a breach of statutory duty. There are some statutory provisions which give rise to a private law action such as section 41 of the Highways Act 1980 which allows users of the highway to sue for a failure to maintain the highway.
What is procedural impropriety UK?
Grounds for review – The ‘ grounds ‘ upon which an application for Judicial Review may be brought were set out in a famous legal case called Council of Civil Service Unions v Minister for the Civil Service AC 374, Lord Diplock summarised the grounds for reversing an administrative decision by way of judicial review as follows:
Illegality Irrationality (Unreasonableness) Procedural impropriety
The first two grounds are known as substantive grounds of judicial review because they relate to the substance of the disputed decision. Procedural impropriety is a procedural ground because it is aimed at the decision-making procedure rather than the content of the decision itself.
The decision is taken by the wrong person (unlawful sub-delegation) Error of law or error of fact The powers used for the purpose different from the one envisaged by the law under which they were granted Ignoring relevant considerations or taking irrelevant considerations into account Fettering discretion or failing to take into account certain policy or an individuals personal circumstances
Irrationality A decision is irrational if it is “so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question could have arrived at it.” This standard is also known as Wednesbury unreasonableness, after the decision in the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation,
Unlike illegality and procedural impropriety, the courts under this head look at the merits of the decision, rather than at the procedure by which it was arrived at or the legal basis on which it was founded. The question to ask is whether the decision “makes sense”. Often a case which fits into ‘Illegality’ will also be considered irrational.
Proportionality Proportionality is a requirement that a decision is proportionate to the aim that it seeks to achieve. For example an order to forbid a protest march on the grounds of public safety should not be made if there is an alternative way of protecting public safety, such as by assigning an alternative route for the march.
- Proportionality is not as yet a separate ground of judicial review on it’s own, although lack of proportionality may be used as an argument for a decision being irrational.
- Procedural impropriety A decision suffers from procedural impropriety if in the process of its making the procedures prescribed by statute have not been followed or if the ‘ rules of natural justice ‘ have not been adhered to.
Statutory procedures An Act of Parliament may subject the making of a certain decision to a procedure, such as the holding of a public hearing or inquiry, or a consultation with an external adviser. Some decisions may be subject to approval by a higher body.
What is an error of fact in judicial review UK?
Challenging an error of fact Leon Glenister considers the issues arising from judicial review challenges based on a claim that there had been an error of fact. Lurking in the background of many judicial review claims is a complaint that a decision maker has made an error of fact.
- Judicial review has generally been limited to challenging errors of law.
- But the courts have, in recent times, not been so bright line in the law-fact distinction as they once were.
- The cases It is now settled that the Court is able to review the application of facts to a particular legal test.
- An early example was R v SSHD ex p Khawaja 1 WLR 625.
The issue was whether Mr Khawaja was an “illegal immigrant” for the purposes of the Immigration Act 1971. Lord Bridge held that the Court was able to look at the evidence and decide whether it justifies the conclusion the Secretary of State reached. The Court was not simply limited to seeing whether there was “some evidence” for the Secretary of State’s conclusion.
- An example of a more recent, and intrusive, review was R(A) v Croydon LBC UKSC 8.
- In issue was whether A was a “child” for the purposes of section 20 of the Children Act 1989.
- It was held this was a precedent fact for the local authority power under section 20 duty and therefore the Court would decide whether the caimant was, or was not, a “child”.
As many may recall this case led to a flurry of “age assessment” challenges. Much more controversial is where the Courts are able to supervise the fact finding process. This is where the allegation is a decision maker, in making their decision, has made a pure error of fact.
- The watershed case in this respect was E v SSHD EWCA Civ 49.
- The claimant was an Egyptian national, for whom the Immigration Appeals Tribunal refused asylum on the basis that he would not face persecution upon his return for being part of the “Muslim Brotherhood”.
- The claimant alleged that the Tribunal did not take into account a report that sympathisers of the Muslim Brotherhood were still at risk, which was available after the hearing but before the promulgation of the decision.
Carnwarth LJ (as he then was) decided in favour of the claimant. Further he found an error of fact could constitute a separate ground of review. There were four requirements for such a review to succeed:
The mistake must be on a existing fact (including mistake as to the availability of evidence on a particular matter); The fact must be uncontentious; The claimant must not be responsible for the mistake; and The mistake must have placed a material part in the tribunal’s reasoning.
This test has been applied in a range of cases since, both inside and outside the immigration context. A good thing? The issue of the Administrative Court’s dealing with errors of fact is that the Court does not have any fact finders. Evidence, almost invariably, is by witness statement.
- It is simply not a process suited to fact finding.
- There remains a question as to the standard the Court will apply in looking at factual findings.
- For example, will it apply a correctness approach as taken in A, or will it allow a decision maker some scope for his or her own discretion where there is conflicting evidence? The answer is not clear and the cases go both ways.
What is clear is that the Administrative Court should be careful in how broadly it interprets E, Challenges must be limited to those which challenge the sufficiency of the evidence before a decision maker – anything further risks judicial review becoming an appeal of a factual decision.
What are the disadvantages of judicial precedent UK?
May be difficult to apply : The operation of judicial precedent may be difficult to apply in cases where the material facts and legal issues are not precisely the same as those in previous cases. This can create uncertainty and confusion for judges and lawyers.
Is the Supreme Court the same as the Court of Appeal UK?
The Supreme Court, as well as being the final court of appeal, plays an important role in the development of United Kingdom law. As an appeal court, The Supreme Court cannot consider a case unless a relevant order has been made in a lower court. The Supreme Court:
is the final court of appeal for all United Kingdom civil cases, and criminal cases from England, Wales and Northern Ireland hears appeals on arguable points of law of general public importance concentrates on cases of the greatest public and constitutional importance maintains and develops the role of the highest court in the United Kingdom as a leader in the common law world
The Supreme Court hears appeals from the following courts in each jurisdiction:
What is an appeal in legal terms in the UK?
How to appeal – If you are unhappy about the decision made by the judge in your case, you may be able to appeal against the decision to a judge in a higher court or in the case of tribunals to the Upper Tribunal or Employment Appeal Tribunal. There must be proper grounds for making an appeal and there are strict time limits within which to do so.