Equality and Human Rights Commission

What is judicial review?

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:

• Without the legal power to do so (unlawful on the grounds of illegality)
• So unreasonable that no reasonable decision-maker could have come to the same decision or done the same thing (unlawful on the grounds of reasonableness)
• Without observing the rules of natural justice (unlawful on the grounds of procedural impropriety or fairness)
• in breach of European Community Law or the Human Rights Act

If the court finds that the public authority has acted unlawfully, it, may:

• issue a mandatory order (i.e. an order requiring the public body to do something)
• issue a prohibiting order (i.e. an order preventing the public body from doing something)
• issue a quashing order (i.e. an order quashing the public body's decision)
• make a declaration
• award damages

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 role of the Commission in judicial review

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 availability of compensation for victims of wartime atrocities
• cuts in funding to services targeted at ethnic minority groups
• guidance recommending discriminatory tests as a pre-condition for the prescription of drugs
• restricting adult care services
• the use of physical restraint on children in custody
• refusal to admit a child to Jewish Free School because the child's mother converted to Judaism in a progressive synagogue
• licensing of taxis
• the decision by the Crown Prosecution Service not to prosecute because the victim, who has a mental health problem, was deemed to be an unreliable witness
• restricting international medical graduates from applying for junior doctor posts, and
• enforcement of planning decisions made against Gypsies and Travellers.

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.

Learning lessons from judicial reviews

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:

• the need to consider equality issues thoroughly in the context of the duties before any significant individual decisions are made or any policy is introduced or subject to significant change
• equality impact assessments may provide important evidence as to whether the public authority has complied with its duties.
• that a public authority should refer to Commission guidance and codes of practice explicitly and keep records of its decision making. If it departs from the code or guidance, there must be clear reasons to do so.
• if another organisation or person is carrying out a function under guidance by the public authority, the responsibility for ensuring that the general duties are met remains with the public authority
• the duties apply not just to decision-makers but also to those who implement them

Judicial reviews and you

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.