Constitutional Law and Judicial Review: Holding Public Bodies to Account
Judicial review is the cornerstone of administrative law in the United Kingdom, providing the mechanism by which individuals and businesses can challenge the lawfulness of decisions made by public bodies, government departments, local authorities, and other entities exercising public functions. Understanding the scope and procedure of judicial review is essential for anyone affected by public authority decision-making.
The grounds for judicial review were classically articulated as illegality, irrationality, and procedural impropriety. A decision is illegal where the decision-maker has exceeded its statutory powers, misinterpreted the law, or failed to take into account mandatory relevant considerations. Irrationality, often referred to as Wednesbury unreasonableness, applies where a decision is so unreasonable that no reasonable decision-maker could have reached it. Procedural impropriety encompasses failures to follow required procedures, breach of natural justice including the right to a fair hearing, and legitimate expectation.
The Human Rights Act 1998 has added a further dimension to judicial review. Section 6 makes it unlawful for public authorities to act in a way that is incompatible with Convention rights, and courts must take into account the jurisprudence of the European Court of Human Rights. Proportionality analysis, which requires the court to assess whether the interference with a right is justified and no more than necessary, provides a more intensive standard of review than traditional Wednesbury unreasonableness for cases engaging qualified Convention rights.
Procedural requirements for judicial review are strict. Claims must be brought promptly and in any event within three months of the decision being challenged. Permission must be obtained from the court before a full hearing. The claimant must demonstrate sufficient interest in the matter, and must generally exhaust any available alternative remedies before seeking judicial review. The pre-action protocol requires a letter before claim to be sent to the defendant, giving it an opportunity to reconsider.
Remedies in judicial review are discretionary and include quashing orders, which set aside the unlawful decision, mandatory orders, which require the public body to take specified action, and prohibiting orders, which prevent future unlawful action. Declarations of unlawfulness are also available. Damages are not generally available in judicial review proceedings unless a parallel claim for breach of Convention rights or other tortious liability is established.
At Masl Legal, our Constitutional Law team represents both claimants and defendants in judicial review proceedings. We advise on the merits of potential challenges, procedural strategy, and the full range of available remedies.
If you believe a public body has made an unlawful decision affecting your interests, time is critical. The strict three-month time limit means that legal advice should be sought as soon as possible after the decision is communicated.
