Judicial Review: How it works
ILPA Info Service, June 2014
Judicial review is the name for the process whereby a Court examines decisions made by the Government or public bodies to ensure that they have been made in a lawful way. Judicial review is focussed on the manner in which decisions are made, not whether the decision was the right one or not.
The Government is currently proposing a number of changes which will impact upon the availability of judicial review and its operation in practice. Taken together, the changes are likely to reduce the ability of individuals to be able to rely on judicial review to redress unlawful public decision making.
When is a judicial review brought?
Judicial review can only be brought when there is no other way to challenge a decision; for this reason it is called a remedy of 'last resort'. For example, if there is an official complaints procedure in place, or if there is a right of appeal to another body, such as a Tribunal, then it is not possible to bring an application for judicial review: you must first exhaust all other possible remedies.
Who can bring a judicial review?
Judicial review claims may be brought by individuals, groups or organisations, as long as they can show that they have sufficient interest in the decision they wish to challenge. The person (or group) applying for judicial review is known as the Claimant and the public body that they are bringing the case against is known as the Defendant.
What is the procedure involved?
In most cases judicial review is a two-stage process1. The Claimant must first apply for 'permission' from the Court to proceed, and will only get through this initial filter stage if s/he can show that the case is arguable - i.e. that there is some merit to the case.
The Claimant applies for permission by filling out an application form and setting out their arguments in writing. The Defendant is given an opportunity to respond in writing with an Acknowledgement of Service (within 14 days) before both sets of written arguments are considered by a High Court judge. The judge will either (a) grant permission - in which case the case will be given a date for a full hearing in Court; or (b) refuse permission. If permission is refused the Claimant must decide whether to give up entirely at this point, or to renew their application at an oral permission hearing. This is a short hearing in open court (i.e. in a courtroom open to the public) at which the Claimant must convince the judge that despite their argument not looking strong on paper, they do have an arguable case. Again, the Judge can either refuse or grant permission.
If permission is granted, a full hearing will follow. At this hearing both sides present legal argument and the judge will decide whether or not the decision under challenge was lawful. It is possible for both sides to come to an agreement on the dispute and stop the proceedings on the basis of an agreement between them; this is known as 'settling' the case. Judicial reviews are subject to tight timescales: you must make an application promptly, and in any event not later than three months from the date of the decision you wish to challenge.
Grounds for Judicial Review
In a judicial review case, the Court looks at the lawfulness of the decision-making process. If the Court finds that the decision was unlawful, it will be 'quashed' (struck down) and the decision-maker will have to take the decision again, this time in a lawful way. Some of the common errors of decision-making that lead to the Court striking down a decision are as follows:
* error of law: the decision-maker misunderstood or misapplied the law
* relevance: the decision-maker wrongly took irrelevant considerations into account or failed to have regard to relevant information
* ultra vires: the decision-maker acted with an improper purpose beyond their statutory powers
* unreasonableness: that the decision-maker behaved so unreasonably that no reasonable decision-maker would have reached the same decision
* bad faith: the decision was affected by dishonesty, corruption, bribery
* breach of natural justice: e.g. a failure to give someone a reasonable opportunity to be heard by the decision-maker
* bias: the decision was not free of bias or the appearance of bias
If you are successful in bringing a judicial review then the decision-maker will usually be forced to re-make the decision properly or cease its unlawful conduct.
Increased Court Fees
Court fees for judicial review (as well as many other types of case) were increased in April. The fee increases affect judicial review cases in both the High Court and the Upper Tribunal (Asylum and Immigration Chamber)1. The box below sets out the relevant figures.
- The fee for making an application for judicial review has more than doubled, rising from £60 to £135
- The fee for proceeding with a judicial review to a full Court hearing has tripled from £215 to £680
- The total fee for bringing a judicial review case is now £815
- This is an overall increase of £540 per case
Court fees are, however, only part of the cost of bringing a judicial review; in most cases they will be much less than the major cost involved: legal fees. A person who does not qualify for legal aid is entitled to represent him/herself, known as a 'litigant-in-person'. However judicial review is a complicated area of law, difficult for non-lawyers to navigate. By bringing the case, a person also risks being required to pay the cost of the lawyer(s) for the other side if they lose. If s/he is able to secure legal aid for their case the State will pay both the Court fees and the costs of their lawyer and they will not risk of having to pay the legal costs of the person against whom they have brought the case. However the Government is pressing forward with more cuts to the legal aid budget and in future fewer people will be able to secure legal aid for judicial review.
Cuts to Legal Aid
Recent years have seen successive cuts to the legal aid budget and more are planned. As of last month, legal aid has been restricted at the 'permission' stage of a judicial review: this is the initial stage where the person must show that they have an arguable case. If they cannot show that they have an arguable case they are refused 'permission' by the Court and the matter stops there. Previously, legal work done at this stage was paid for by the Legal Aid Agency, regardless of outcome. However from now on, a lawyer working on a legally-aided case will only get paid if they are successful in getting permission to proceed. This is likely to make it more difficult for those who cannot pay to find a lawyer to take on their case because lawyers will (understandably) be more reluctant to take on cases from legally-aided clients, as these are now cases which carry the risk of no payment whatsoever.
Legal Aid would also be affected by the introduction of a proposed 'Residence Test', which would made it more difficult for persons subject to immigration control to get legal aid across a whole range of civil (i.e. non-criminal) matters, including judicial review. For further information see the Information Sheet: Legal Aid 18. This is proposed for August, although currently the subject of a legal challenge (itself a judicial review).
Overall, the increases in Court fees, combined with the cuts to legal aid provision, will result in judicial review being less accessible to members of the public who cannot afford to pay for lawyers to defend their rights. The changes to judicial review will operate as a means of insulating the Home Office from legal scrutiny, meaning that more unlawful decisions will be left unchallenged with the consequent injustice for the individuals affected.
Immigration cases make up the largest proportion of judicial review cases; this remedy is often the only one available for people subjected to poor decision-making by the Home Office. The fee increases will thus affect large numbers of people who are no longer able to secure legal aid (either because immigration has gone out of the scope of legal aid, or because the cuts mean that they are unable to find a lawyer willing to take on their case). The imminent loss of immigration appeal rights with the passing of the Immigration Act means that judicial review will be the only possible means of challenging an unjust Home Office decision for an even larger group of people, giving these changes a heightened significance.
Raising the threshold for challenge
The Criminal Justice and Courts Bill, which is currently in progress in the House of Commons, contains provisions which would restrict the scope of judicial review. At present the Government has a defence to a judicial review challenge if it can show that had the decision been made in a lawful way the eventual outcome would inevitably have been the same. This is called a 'no difference' defence and is illustrated by the below example.
- The Home Office decides to deport someone because of criminal conduct
- The decision fails to take account of the fact the person has a pending Family Court hearing to determine whether he would be able to gain contact with his British child whom he has never met
- The decision is unlawful, because relevant information was not taken into account (this is a common ground for judicial review)
- However, the Home Office can show that, even if it had factored in the custody hearing it would still have decided to deport the person (for example because the application to gain contact was ultimately refused)
- Judicial review will not be granted; the Home Office can rely on a 'no difference' defence and show that the decision was inevitable
The Bill would widen the scope of this defence, such that if the unlawful part of the decision-making process is "highly unlikely" to have affected the outcome, then judicial review will be refused. Thus in cases where there is a possibility of a different result (for example, a possibility that the decision to deport the person would not have been made), the Government will be allowed to rely on the unlawful decision-making. In practice, what this means is that the Government will be insulated from challenges against its unlawful decision-making in a wider range of circumstances than before. This provision is also likely to mean that there will be more protracted argument at the early "permission" stage which is being subjected to legal aid cuts.
New costs for interveners
The Bill also contains provisions on costs which would make it more difficult for charities to intervene in judicial reviews. At the moment, a charity or other group acting in the public interest, may apply to the High Court to intervene in a judicial review: they are then known as an 'intervener'. The Court will only permit this if it is of the view that the intervener can provide it with useful information which will assist in its determination of the case. For example, the United Nations High Commissioner for Refugees (UNHCR) sometimes intervenes in cases involving important points of refugee law.
The provisions will mean that an intervener may be required to pay the costs of the Government department or public body that arise from their intervention in the case. Charities intervening often rely on lawyers representing them free of charge ("pro bono") who prepare a written submission on their behalf relevant to the case. These proposals mean that the intervener may have to pay the cost of the lawyers for the parties in the case reading this submission and responding to it. Such costs are difficult to estimate in advance; charities may be unable to afford their own lawyers, let alone be able to pay the costs of expensive Government legal teams. This change is likely to deter charitable interventions in cases with a wider public interest.
The Parliamentary Joint-Committee on Human Rights has released a report covering the changes: "The implications for access to justice of the Government's proposals to reform judicial review" (30 April 2014). This report is highly critical of the changes and is available <> here . . . . It essentially recommends that none of the Government's planned reforms be implemented, or that, if they are, their impact be mitigated.
ILPA's Briefings on the Criminal Justice and Courts Bill are available on the Briefings section of our website <>here . . . .
You can follow the progress of the Bill, currently awaiting its report stage in the Commons, <http://services.parliament.uk/bills/2013-14/criminaljusticeandcourts.html>here. The Bill will be moved forward when the next Parliamentary session commences on 4 June 2014.
Source for this Data
Immigration Law Practitioners' Association (ILPA)