Creating a fairer Britain
Judicial review is a procedure by which a person who has been affected by a particular decision, action or failure to act of a public authority may make an application to the High Court, which may provide a remedy if it decides that the authority has acted unlawfully. Judicial review is concerned not with the merits of the decision, but whether the public body has acted lawfully.
A public authority may be acting unlawfully if it has made a decision or done something:
If the court finds that the public authority has acted unlawfully, it, may:
Damages are rare and not automatically awarded as in county court or in employment tribunal cases, as the court may think that one of the other remedies is more appropriate. They are more likely to be awarded where there has been a breach of the Human Rights Act.
There is a 3 month deadline for making an application for judicial review, from the date of the act or omission that is being challenged, although there is an obligation on the person wishing to make an application to act promptly.
The Commission has a power to institute judicial review proceedings in matters of relevance to its functions including where a public authority has breached the general equality duty. Judicial review cases in respect of equality duties (i.e. the existing equality duty or previous duties) concern whether or not a public authority has paid / had due regard to the general equality duty when: making a decision, acting or failing to act. The key question tends to be the weight given to the duty when the decision was made, or the act or failure to act occurred.
To date, the issues which have come before the courts have included:
The Commission is not always in a position to comment on what is happening in current legal cases. This is particularly the case if it is engaged in discussions about out-of-court settlements. These may include agreeing actions which the public authority can take to improve the way in which it works.
Because there have now been a significant number of judicial review cases concerning equality duties, it is possible to identify some general principles which the courts will apply when they are considering a case of this nature. However, the courts have the authority to develop or modify these principles as new cases come before them.
From the cases to date, it is clear that the equality duties are taken very seriously by the Courts. They stress:
This information should not be relied upon if you are contemplating judicially reviewing a public authority. It has been written to give a general outline of the subject and is not intended to replace professional legal advice. If you are thinking about the possibility of beginning judicial review proceedings against a public authority, you should seek advice from a qualified solicitor with suitable experience in judicial review.
Further information on judicial review procedure and the administrative court can be found on Her Majesty's Courts Service website.