Judicial reviews have been in the news lately. Junior doctors failed in an application to the High Court for a judicial review to stop health secretary Jeremy Hunt imposing a new contract on them.
In another review, the High Court ruled that the government cannot trigger Article 50 to take the UK out of the EU without parliamentary approval. And, of course, questions are being asked about challenging the government’s decision to slash community pharmacy’s – based on the claim that the decision was “legally flawed”.
So I thought I’d talk about what a judicial review is – and is not.
The process by which the courts oversee the decisions of the government, ministers and other public bodies is known as judicial review. Lord Denning, one of the great English judges of the twentieth century, used to say: “Be you ever so high, the law is above you.”
This does not mean there is an automatic right to challenge a decision that a complainant does not like. Rather, judicial reviews are concerned with questions such as:
- whether ministers are acting within the scope of the powers given to them
- whether the process leading to a decision was procedurally fair
- whether a decision-maker has interpreted the law correctly
- whether a decision is supported by evidence
- whether a decision is rational.
Even when ministers are given a discretion to make a decision, they still have to act properly. For example, before decisions are made, a party may have what is known as a legitimate expectation that they will be consulted. The process of consultation must be fair, and the decision-maker must not have made a final decision before the consultation takes place. It can be difficult to satisfy a judge that a decision a complainant does not like is irrational. Generally, such a decision must be so unreasonable that no reasonable decision-maker could properly have made it.
The High Court rules include a protocol for Judicial Review cases. Before court proceedings are started, the complainant is expected to send a formal letter to the decision-maker, setting out the grounds of challenge. If the decision-maker does not back down, a judicial review claim has to be lodged in the High Court promptly – and in any event within three months.
Once papers are lodged, a judge will decide whether the claimant has an arguable case. If so, permission will be given for the case to go forward to a full hearing. As recent months have shown, a judicial review is used to decide some of the most momentous issues of our time.
David Reissner is senior healthcare partner at law firm Charles Russell Speechlys LLP (firstname.lastname@example.org)