Which country practice judicial review

In other words, "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision] was biased" Thus, where the chairman of a planning committee had a close relationship with developers, apparent bias was found However, an adjudicator of a construction dispute was not apparently biased in circumstances where he had ruled previously on the dispute and where he had engaged in a telephone conversation with the solicitor of one of the parties The right to be heard is fundamental in criminal and asylum cases, but also extends to commercial situations.

A flawed consultation process restricting the right to be heard is now a common ground for judicial review. In many situations, a decision maker will be required to consult by statute, and any flaw in that process may vitiate the final decision. In March , HS2 Action Alliance, a not-for-profit organisation working with other action groups opposed to the Government's proposal to build the "High Speed 2" rail link, were successful in their claim that the consultation process for the compensation scheme for blighted properties, on or near the route of HS2, was flawed The court held that the consultation period was so unfair as to be unlawful.

The Government had failed to provide adequate information to consultees on the practical implications of the proposed schemes and had failed to conscientiously consider the claimants' consultation response. In relation to the right to reasons, there is a large body of case law that supports the existence of this general duty There is an obvious rationale for reasoned decisions: it enables claimants to assess whether a decision has been made for illegal or irrational reasons.

Allied to the ground of procedural impropriety is the notion of "legitimate expectation". This is sometimes considered as a discrete ground for judicial review and arises where a party has been given an expectation that a body will act in a certain way, either because of express statements from the authority, or from prior conduct. It is likely that for a legitimate expectation to arise there will need to have been a clear promise or evidence of a regular practice The challenge to the Government's decision to scrap the "Building Schools for the Future" programme is an example of a successful claim on the basis of legitimate expectation.

The issue in this case was that the Government made its decision without conducting a consultation. The claimants, five local authorities, each of whom had committed to building schools under the BSF programme, successfully argued that they had a legitimate expectation to be consulted before the decision was made The court held that, in view of the fact that the BSF programme had previously been run as a partnership basis between central and local government, project-specific decisions could not lawfully be made abruptly without some prior consultation.

Detailed analysis of the provisions of the Human Rights Act is beyond the scope of this note. However, section 6 1 of the Act provides that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right". This may provide an independent ground for judicial review. Judicial review is not intended to provide a means for the merits of decisions to be challenged. Because of this the following remedies are available:.

A successful judicial review will often result in a quashing order and an order that the matter be remitted to the decision-making body for reconsideration.

It is important that it is understood that this will not necessarily result in a different outcome from the original decision.

Where the original decision was unreasonable or unlawful, then the same outcome may be precluded. However, where there has been a procedural defect it is possible that the same decision will be reached again.

In certain instances, a successful judicial review may leave a claimant in a worse position than it was in originally. It is a principle of judicial review that remedies are discretionary. So a claimant may be able to show that a decision-maker has acted improperly but the court may decline to grant the remedy sought. The court may make a declaration or order an injunction where "it would be just and convenient" in "all the circumstances of the case" There is no right in judicial review to claim damages for losses caused by unlawful administrative actions.

It is only possible to receive damages in judicial review claims if there is another established cause of action, separate to the ground for judicial review, such as breach of statutory duty, misfeasance in public office or a private action in tort. For example, where a decision-maker takes into account an irrelevant decision, as well as providing grounds for quashing the decision on the basis of illegality, this may create a right to damages for misfeasance in public office if it can be proved that the action complained of was done knowingly or maliciously.

Where a separate cause of action accrues, the claim for judicial review may include a claim for damages to avoid the need to bring parallel proceedings. While damages are not available that is not to say that there is no financial gain to be had from bringing a judicial review claim.

The publicity associated with a judicial review claim will often encourage a public body to retract a decision or settle the dispute. The detailed procedure for making a claim for judicial review is beyond the scope of this Quickguide. A number of key points are set out below:. We bring together lawyers of the highest calibre with the technical knowledge, industry experience and regional know-how to provide the incisive advice our clients need.

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A virtual library of regularly posted insights and legal updates based on your selected preferences. QuickGuides english civil litigation 18 Jun Judicial Review. Legal Updates. The PDF server is offline. Please try after sometime. What is judicial review? It is important to be aware that: judicial review is not concerned with the merits of decisions.

It focuses on the process by which decisions were made and actions taken; judicial review is not confined to reviewing the decisions of public bodies. Any party exercising a "public function" may be subject to judicial review proceedings; and judicial review is a remedy of last resort.

It is only available where all alternative avenues of challenge or appeal have been exhausted. Why is judicial review relevant to my business? Who may be the subject of a judicial review? The "but for" test: in other words, whether, but for the existence of a non-statutory body, the functions exercised by such body would inevitably be regulated by statute. Bodies which have been considered amenable to judicial review using this test include the Advertising Standards Authority 2 and the Takeover Panel 3.

However, the Football Association's decisions escaped review as the court held that if the Football Association did not exist, the state would not have found it necessary to perform its functions 4. Statutory "underpinning": where the government has encouraged the activities of an organisation by providing "underpinning" for its work, or the body was established under the authority of the government, this can constitute grounds for a body to be considered to be exercising a public function.

However, the fact that a body is recognised in legislation as, for instance, the Football Association was in the Football Spectators Act is not sufficient to bring its activities within the remit of public functions. Extensive or monopolistic powers: the fact that a body exercises extensive or exclusive functions may be a relevant factor. The Takeover Panel was described as having "a giant's strength" 5.

However the exercise of extensive power in the private sector is not necessarily sufficient and the number of people affected or the seriousness of the impact of a decision are not necessarily conclusive 6. These include those of: the managers of a private psychiatric hospital because there was sufficient statutory underpinning and public interest in the care of patients 7 ; a registered social landlord who operated within a sector which was permeated by state control and worked side-by-side with public authorities and who received substantial public subsidies 8 ; an independent school regarding an assisted place 9 ; a privatised water company exercising statutory powers although as a commercial organisation it was entitled to act in the interests of its shareholders and not merely in the public good 10 ; and an airport operator in relation to noise pollution and vibrations felt by local residents Who may apply for judicial review?

The applicant's interest will be assessed in the context of all factual and legal circumstances in the case, such as: Strength and importance of the grounds of challenge: in a claim regarding the decision of the UK Government to approve aid for the construction of a dam and hydro-electric power station in Malaysia, the judge said that "the merits of the challenge are an important, if not dominant, factor when considering standing" Proximity of the decision to the claimant: a claimant who challenges a decision which interferes directly with his personal right will clearly have standing to bring a claim for judicial review.

A direct financial or legal interest in a matter is not required. The treatment of competitors by a public body may also give rise to sufficient interest. ICI alleged that this would have given its competitors an artificially favourable taxation regime. Whether there is an alternative remedy: the courts have, on numerous occasions, made it clear that, in the absence of exceptional circumstances, permission to proceed with a claim for judicial review will be refused where a claimant has failed to exhaust other possible remedies.

Article III says that the federal judiciary has power to make judgments in all cases pertaining to the Constitution, statutes, and treaties of the United States. Article VI implies that the judicial power of the federal courts of law must be used to protect and defend the supreme authority of the Constitution against acts in government that violate or contradict it.

Furthermore, Article VI states that all officials of the federal and state governments, including all judicial Officers, both of the United States and of the several States; shall be bound by Oath or Affirmation to support this Constitution. A constitution is. It therefore belongs to [judges] to ascertain its meaning as well as the meaning of any particular act proceeding from the legislative body.

In this case, the U. Supreme Court declared one part of a federal law to be unconstitutional. In the 20th century, judicial review was incorporated into constitutional democracies around the world. To assure these ends, the Framers of the Constitution created three independent and coequal branches of government.

That this Constitution has provided continuous democratic government through the periodic stresses of more than two centuries illustrates the genius of the American system of government. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations. While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document.

Prior to , state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.

Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people.

And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.

In this decision, the Chief Justice asserted that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way.