Judicial Review

Judicial review

• Court reviewal of actions of a gov’t or public body to determine if it has acted ultra vires

3 further parts of JR

1. Illegality

2. Irrationality — not being reasonable

3. Irregularity — not properly consulting or acting in accordance with ‘natural justice’

2 key roles

• Ensure govt doesn’t act ‘ultra vires’ (overstep)

• Assert rights of citizens

Freedom of Information Act 2000 - impact on judicial review

• Gives citizens and courts a right to see a wider range of official documents

• Means there’s more scope to discover injustice and abuse of rights

2 impacts of HRA 1998 on JR

1. Bought human rights to the UK by putting it in British law, when before those who wanted to make a human rights challenge had to travel to European courts

2. Allowed courts to review actions that contravene the ECHR

HRA 1998 and JR

2000-2019

• 42 declarations of incompatibility with the ECHR

  • 10 overturned by appeal

  • 23 addressed by govt

  • 2 govt proposals to address

  • 5 rulings under consideration

  • 2 subject to appeal

• Civil Partnership act declared incompatible with the ECHR as discriminated against heterosexuals

6 grounds for JR

1. Illegality

2. Procedural impropriety - the process through which the decision was made was biased

3. Irrationality

4. Breach of the HRA 1998

5. Ultra vires

6. (not anymore) EU law was binding on PM and govt institutions

Recent example of JR — 2026 local elections

• Postponed in some areas to implement changes to council structure

• RUK said it undermined local democracy and SoS for housing may not have had such powers

  • Gov’t withdrew plan to delay elections 3 days before the case due to legal advice they’d been given before the hearing (essentially that they were in the wrong)

JR example — R v Chaytor and others (2010)

• 3 L MPs charged with criminal offences during expenses scandal

  • Argued actions protected by Plmtary privilege as expenses were necessary part of MP-ing

• Court of Appeal said that they were ordinary criminal offences and weren’t covered by PP

  • SC agreed

JR — Evans v Attorney General (2015)

• Evans found out Prince Charles had been sending private correspondence to gov’t ministers and FOIed them but was denied because Charles was the heir and they could have damaged his ability to be King

• Upper Tribunal said they should be disclosed due to their believed political nature, A-G overturned it

• SC reverted to UT decision and said A-G did not have the right to veto the letter’s disclosure

JR — Steinfield and Keiden v Home Sec 2018

• Civil Partnerships seen as incompatible with ECHR and HRA as straight couples couldn’t get them

  • Gov’t said it allowed same-sex couples rights they couldn’t otherwise achieve

    • BUT same-sex marriage act made it more difficult to justify

• High Court and Court of Appeal dismissed straight couple’s claim but SC said it was fair because same-sex couples now had equal marriage rights so straight couples should also get civil partnership rights

JR — Lee v Ashers Baking Company Ltd and others

• Gay cake case

• Court of Appeal agreed that Mr Lee had suffered discrimination based on sexuality

• SC found in favour of bakery as gay marriage ≠ being gay so no discrimination

2 aspects of Judicial Review and Courts Act 2022

1. Protects HR and immigration decisions from JR

2. Suspended quashing orders — judge can set time limit for gov’t to rectify error