Lecture 26: Judicial Review - Procedure and Remedies Flashcards
What are the preliminary issues involved in judicial review?
The preliminary issues in judicial review include:
Permission – Courts have discretion to refuse permission for judicial review.
Jurisdiction – Whether the court has the authority to hear the case.
Justiciability – Whether the matter is suitable for judicial review.
What is the process for obtaining permission for judicial review in England and Wales?
In England and Wales, the process for obtaining permission for judicial review is outlined in the Civil Procedure Rules (CPR), Part 54. There are two stages:
Permission Stage – The claimant must first obtain permission to proceed (CPR 54.4).
If permission is granted, the court will then consider the claim.
For permission to be granted, the following criteria must be met:
The claim is arguable.
The claim is made within a 3-month time limit (CPR 54.5).
The claimant has sufficient interest (standing).
Other avenues of redress have been exhausted (e.g., internal appeal).
If successful, the claim would make a difference to the claimant.
How is permission for judicial review handled in Scotland?
In Scotland, permission for judicial review is governed by the Rules of the Court of Session, Chapter 58. The process involves:
Applications must be made by petition for judicial review (r 58.1(1)).
Judicial review cannot be sought if the application could be made via appeal or review under any enactment (r 58.3(1)).
Applications must be made within three months (s.27A(1), Court of Session Act 1988).
Permission is granted only if:
The applicant has sufficient interest.
The application has a real prospect of success (i.e., the grounds of review are not fanciful).
What is the jurisdictional basis for judicial review in England and Wales?
Judicial review in England and Wales is primarily based on common law, though some statutory restrictions may apply. The High Court has jurisdiction to make mandatory, prohibiting, and quashing orders (s29(1A), Senior Courts Act 1981).
Jurisdiction is determined by the decision-maker’s authority and whether the issue is justiciable. This includes reviewing statutory or prerogative powers (e.g., GCHQ case, R. v Secretary of State for the Home Department Ex p. Bentley, and R. (on the application of Miller) v Prime Minister [2019] UKSC 41).
How is jurisdiction for judicial review determined in Scotland?
In Scotland, the Court of Session exercises its supervisory jurisdiction to ensure decisions are made lawfully. In West v Secretary of State for Scotland (1992), the court stated that the purpose of this jurisdiction is to ensure public bodies do not exceed or abuse their powers or fail to carry out their duties.
The supervisory jurisdiction applies to both public and private law and is not confined to cases accepted in English law for judicial review.
What can and cannot be reviewed by the courts in England and Wales regarding jurisdiction?
In England and Wales, the courts can review:
Exercise of public functions:
Statutory public functions
Exercise of Royal Prerogative (except personal powers and dissolution of Parliament)
Exercise of de facto public functions
Delegated legislation:
However, primary legislation (Acts of the Westminster Parliament) is not reviewable by the courts.
What can and cannot be reviewed by the courts in Scotland regarding jurisdiction?
In Scotland, the courts can review:
Acts of the Scottish Parliament
Exercise of public functions:
Statutory public functions
Exercise of Royal Prerogative (except personal powers and dissolution of Parliament)
Exercise of de facto public functions
Delegated legislation
However, primary legislation (Acts of the Westminster Parliament) is not reviewable by the courts in Scotland.
What is justiciability and what limits judicial review by the courts?
Justiciability refers to whether a matter is suitable for judicial review.
Judicial review by the courts is only limited by:
Constitutional role: The courts must respect their role in the legal system.
Institutional capacity: The court may lack expertise, or the matter may involve complex policy or public interest considerations, making it unsuitable for judicial review (e.g., polycentric matters).
Note: No power is inherently unreviewable, except for the prerogative power to dissolve Parliament.
What does amenability to review mean?
Amenability to review refers to whether a decision or decision-maker can be reviewed by the court.
It also questions whether there is a public/private distinction when determining if a case is reviewable.
How does amenability differ between English and Scottish law?
England & Wales: There is a distinction between public and private bodies. Only the exercise of “public functions” is reviewable (Civil Procedure Rules, r.54.1).
Scotland: There is no distinction between public and private law. Judicial review is not confined to cases accepted by English law as reviewable. (West v Secretary of State for Scotland 1992 SC 385, at 412-413)
What is standing, and how does it differ between English and Scottish law?
Standing refers to whether a person has the right to bring a claim or petition for judicial review.
England & Wales: The claimant must show “sufficient interest” in the matter (Senior Courts Act 1981, s.31(3)).
Scotland: The claimant must now show “sufficient interest,” similar to English law, although previously, both title and interest were required (AXA General Insurance v HM Advocate [2011] UKSC 46).
What does the requirement of “sufficient interest” mean in judicial review?
In judicial review, a claimant must have “sufficient interest” in the matter, which does not necessarily require a personal interest. If acting in the public interest, an individual can claim if the issue directly affects the public they seek to represent (AXA, Lord Hope, [63]). Judicial review serves to preserve the rule of law, which can extend beyond individual legal rights (AXA, Lord Reed, [169]).
What remedies are available in judicial review in England and Wales?
In England and Wales, remedies are discretionary and include:
Quashing order: Decision has no effect (new prospective-only or suspending orders under Judicial Review and Courts Act 2022)
Quashing order with remittance: Sends the decision back to the decision-maker
Prohibiting order
Mandating order
Declaration
Injunction
Declaration of incompatibility (under the Human Rights Act 1998)
Damages (only if available in non-judicial review proceedings)
What remedies are available in judicial review in Scotland?
In Scotland, the Lord Ordinary (LO) may grant or refuse any part of the judicial review petition with or without conditions. Possible remedies include:
Reduction: Rescind, quash, or set aside decisions
Declarator
Suspension
Interdict
Implement
Restitution
Payment (including damages)
The courts have wide discretion to deny remedies (Walton v Scottish Ministers [2012] UKSC 44).
