Judicial review: an overview
David A Scoffield BL Law Society House
10 May 2011
Who is this talk aimed at?
• Lawyers • ‘Normal people’ (non-‐lawyers)
• Those who know a li<le about judicial review • Those who know virtually nothing about judicial review
Why should you be interested? • The pracCce of judicial review spans many areas of law:
• Criminal procedure • Prison law • Planning • Licensing • EducaCon • Social security benefits • Criminal injuries compensaCon • Human Rights • PoliCcal / consCtuConal issues
Why should you be interested?
• Judicial review:
• Is a growth area • OQen makes new law • Remains an area in which legal aid is oQen available
• Can make a real difference to lives • Is interesCng (?)
What is judicial review?
• Judicial review is the exercise of the High Court’s supervisory jurisdicCon over public law decisions and acCons
• ‘Judicial review is the appropriate remedy where a person seeks to establish that the decision of a person or authority infringes rights protected by public law’: per Hu<on LCJ in R v Chief Constable, ex p McKenna [1992] NI 116 at 123a
• ‘... the principal legal procedure by which public power is defined, invoked or restrained’ (Larkin and Scoffield, Ch 1)
The basis for judicial review
• Two broad views:
• (i) LegislaCve intent: ‘the ultra vires principle’
• (ii) Common law: consCtuConal principles of judicial control of public power
What is judicial review?
• The jurisdicCon is one which is exercised by the High Court alone
• The jurisdicCon is supervisory and is neither an appeal nor (generally) addressed to the merits of the decision
• The jurisdicCon is only available in respect of public law issues
• The jurisdicCon is generally a remedy of last resort (unavailable where there is a suitable alternaCve remedy)
Review: not appeal “In judicial review, the High Court is not a court of appeal. It does not hear and determine appeals on the merits against decisions of public authoriCes. Rather, the High Court exercises a supervisory jurisdicCon. Stated succinctly, the funcCon of the High Court is to ensure that public authoriCes observe all relevant legal rules, standards and requirements and act within the limits of their powers. In essence, the High Court conducts an audit of legality.”
per McCloskey J in Re Board of Governors of Loreto Grammar School’s Applica@on [2011] NIQB 36
Public law issues • Judicial review is a public law procedure designed to supervise the public
administraCon and check the excesses of public power
• See Re McBride’s Applica@on [1999] NI 299 (QBD); and No 2 [2003] NI 319 (CA):
“It appears to me that an issue is one of public law where it involves a ma<er of public interest in the sense that it has an impact on the public generally and not merely on an individual or group. That is not to say that an issue becomes one of public law simply because it generates interest or concern in the minds of the public. It must affect the public rather than merely engage its interest to qualify as a public law issue. It seems to me to be equally clear that a ma<er may be one of public law while having a specific impact on an individual in his personal capacity.” [per Kerr J]
Public law issues Classically, judicial review will be against a public body. However…
• A private body may be exercising public law funcCons: see R v Panel on Takeovers and Mergers, ex parte Datafin [1987] QB 815; Re Wylie’s Applica@on [2005] NI 359
• A public body may be exercising private law funcCons
• It is the nature of the power/funcCon which is relevant and not its source: see the GCHQ case (Civil Service Unions v Minister for the Civil Service [1985] AC 374)
The grounds of judicial review
• JR is a review rather than an appeal
• The tradiConal groups of judicial review grounds are (i) illegality; (ii) procedural impropriety and (iii) irraConality (per Lord Diplock in the GCHQ case)
• More recently developed grounds are now (iv) breach of legiCmate expectaCon; (v) mistake of fact; (vi) human rights grounds
• OQen, grounds will overlap
Illegality (ultra vires)
• acCng contrary to statutory provisions • erring in law and/or misdirecCng yourself in law • exceeding statutory powers • acCng without jurisdicCon • acCng for an improper purpose • improperly fe<ering a discreCon • unlawfully delegaCng a funcCon
Procedural impropriety
• Failing to adhere to established procedures (a species of legiCmate expectaCon)
• Failing to adhere to the principles of natural jusCce: (i) audi alteram partem (the right to know what is alleged against you and present your version) and (ii) nemo judex in causa sua (the rule against bias)
• Failing to comply with the duty to act in a procedurally fair manner -‐ procedural safeguards which will differ from case to case: see ex parte Doody [1994] 1 AC 531
IrraConality
• Procedural irraConality: taking irrelevant consideraCons into account or failing to take relevant consideraCons into account
• SubstanCve irraConality: Also known as Wednesbury unreasonableness – see Associated Provincial Picture Houses v Wednesbury Corpora@on [1948] 1 KB 223
• Made out where no reasonable decision-‐maker could have come to that decision
• A very high threshold
LegiCmate expectaCon
• Established by representaCon by the public body or, more difficultly, from past or established pracCce or the circumstances of the case
• LegiCmate expectaCon may give rise to enCtlement to (i) procedural protecCon before the expected benefit is denied; or (ii) the substance of the expected benefit
• See Re Board of Governors of Loreto Grammar School’s Applica@on [2011] NIQB 30
Mistake of fact
• Previously limited review in relaCon to fact-‐finding: only where no factual basis on which decision could be reached
• May now review where mistake as to established and relevant fact
• See Re Treacy and MacDonald’s applica@on [2000] NI 330
Human Rights
• SecCon 6 of the Human Rights Act 1998: obligaCon on public authoriCes not to act incompaCbly with ConvenCon rights
• Note the ‘vicCm’ requirement in secCon 7 of the HRA
• Where you are challenging primary legislaCon the best you can achieve is a declaraCon of incompaCbility
ProporConality
• Part of EU and human rights law
• ConCnuing controversy over whether it is now (or ought to be) established in domesCc public law – see ex parte Daly [2001] 2 AC 532 and R (ABCIFER) v Sec of State for Defence [2003] 3 WLR 80
Procedure for Judicial Review • Governed by:
• Order 53 of the Rules of the Court of Judicature (Northern Ireland) 1980
• SecCon 18 of the Judicature (Northern Ireland) Act 1978
• Judicial Review PracCce Note and Pre-‐AcCon Protocol
• Two stage procedure: leave and substanCve hearing
Time limits
• Governed by Order 53, Rule 4 – applicaCon must be brought ‘promptly’ which varies with the circumstances
• ‘and in any event within three months’
• Need to explain delay in grounding affidavit
Locus Standi
• Governed by Order 53, Rule 3(5) – applicant requires ‘sufficient interest’ in the ma<er to which the applicaCon relates
• See R v Inland Revenue Commissioners, ex p NFSSB [1982] AC 617; and, in NI, Family Planning Associa@on v Minister for Health [2005] NI 188 per Nicholson LJ at para [45]
• Note difference from vicCm requirement under HRA
Relief in Order 53 proceedings
• Cer@orari – quashes a decision or acCon
• Mandamus – enforces the performance of a public law duty
• Prohibi@on – restrains a Respondent from acCng unlawfully
• Declara@on – sets out the rights of the parCes
• Injunc@on – compels or restrains certain acCons
JR Checklist
• (1) Is it a public law ma<er suscepCble to judicial review challenge?
• (2) Is there an alternaCve remedy which must be pursued?
• (3) Is there a JR ground of review which can arguably be made out?
JR Checklist
• (4) Does the applicant have sufficient interest to have standing?
• (5) Can the applicaCon be made promptly or at least within three months of the decision?
IniCal steps • Engage in pre-‐proceedings correspondence: see Re
Cunningham’s Applica@on [2005] NIJB 224
• NOTE also the need for compliance with the JR Pre-‐AcAon Protocol (September 2008): “Scrupulous compliance with the Judicial Review Pre-‐ApplicaCon Protocol is indispensable in every case, subject to the very narrow excepCons recognised in the text” [per McCloskey J in Re McDonagh’s Applica@on [2010] NIQB 139 at para 17].
• Apply for Legal Aid (if appropriate), oQen with need for counsel’s opinion
Lodging proceedings
• Have draQed: (i) Order 53 Statement; (ii) supporCng affidavit
• Lodge above with ex parte docket
• Dealt with in the Judicial Review Office
DraQing essenCals
• Order 53 Statement is a formalised document which must contain:
• (i) a statement of who the Applicant is • (ii) a statement of the relief sought • (iii) a statement of the grounds on which relief is sought
Progress of the case
• Leave may be granted on the papers or at a hearing
• Hearing will be required in an unclear case or where interim relief has been claimed
• Test for leave is whether there is (i) an arguable case; or (ii) a case worthy of further invesCgaCon
Progress of the case
• AQer leave: (i) lodge NoCce of MoCon within 14 days (or leave will lapse); and (ii) apply for extension of Legal Aid authority if necessary
• The case is managed by the Judge through menCon hearings unCl ready for hearing
Evidence in JR
• Limited discovery – but see now Tweed v Parades Commission [2007] 2 All ER 273 (HL)
• Evidence by affidavit (see RSC Order 41)
• Can apply for a<endance of witnesses and leave to cross-‐examine but this happens rarely
‘Se<ling’ a JR
• ResoluCons may be reached between the parCes
• If the Judge is saCsfied that the public authority acted unlawfully he may grant relief by consent but will not do so unless he is so saCsfied
• AlternaCvely, the applicaCon may be dismissed by consent
• If costs are not conceded by the respondent, they will only be awarded if the applicant can show he was virtually certain to succeed – this happens rarely
Hearing
• Skeleton arguments should be lodged in every judicial review unless dispensed with by the Judge: see the relevant PracCce DirecCon
• Applicant makes submissions; the respondent replies; and the applicant has a right to reply
• Usually heard by Mr JusCce Treacy or Mr JusCce McCloskey
Costs in JR
• Normal costs rules apply
• However, where the liCgaCon is in the public interest, normal pracCce made be departed from (eg. protecCve costs orders)
Useful texts
• Larkin & Scoffield, Judicial Review in Northern Ireland: A Prac@@oner’s Guide (2007, SLS Legal PublicaCons (NI))
• Anthony, Judicial Review in Northern Ireland (2008, Hart Publishing)