JUDICIAL REVIEW AND HOW IT WORKS

Review of a public body decision

Judicial review requires High Court judge to reconsider a decision (or failure to make a decision) of a public body (eg government departments, local authorities etc). The court considers whether the body made the decision correctly: that is, did it have power to decide the way it did (‘unlawfulness’), did it act rationally in making its decision (‘reasonableness’), and were correct procedures followed (‘procedural’): explained further below?

The court does not re-make the decision. It has the power to quash it (‘quashing order’: ie set aside what the decision-maker has decided), to order the body to do something specific (‘mandatory order’: eg carry out a consultation of individuals affected by a decision) or to tell it not to proceed as it proposes (‘prohibitory order’). The public body decision-maker must then deal with the case within the terms of what the judge has told it to do; or remake the decision with the judge’s decision in mind.

Grounds for judicial review in child sexual abuse inquiry

In the case of the child sex abuse inquiry it is said the Home Office did not act lawfully, and that it failed to follow correct procedures (eg in relation to consultation). In outline this is because of the following:

Lawfulness

The judicial review application asserts that the Home Office did not consider the appropriateness of Mrs Woolf, and the early panel members, till after their appointment (this is clear from the documents finally released by the Home Secretary on 21 October 2014). Mrs May did not properly consider the experience of the panel members.

When their experience and partiality was considered it was on the basis of documents drafted by Home Office officials and the QC taken on for the inquiry (certainly in the case of Mrs Woolf’s letters). The technical legal term for lack of partiality is ‘bias’ as it is called formally in law (I explained this fully in my ‘Open letter to Mrs Woolf’ at https://dbfamilylaw.wordpress.com/2014/09/07/csainquiry-open-letter-to-fiona-woolf-on-bias/ published on 9 September 2014).

The making of the appointment before consideration of expertise and bias is, it will be said, unlawful.

Procedurally wrong

There are two main areas of procedural wrongness in the case of the child sex abuse inquiry. First, consultation was promised Mrs Villiers in the House of Commons in later September 2014. This unquestionably created a ‘legitimate expectation’ – that people could reasonably expect to be consulted about the terms of reference, at least. There would be consultation with people affected by the inquiry – such as survivors – at least as to the terms of reference of the inquiry of this. The law says that, in this context, consultation would have been ‘fair’ in law. (As I write this the BBC news says ‘survivors’ groups’ are to be consulted on a new chair; but there is no mention of the terms of reference.)

Secondly, reference is made by the panel members’ letters (published on 21 October) to Inquiries Act 2005; yet the inquiry remains non-statutory. A judge on judicial review can be asked to find that this is not rational; and to quash the present decision to set up the panel (with its existing secretariat).

Most survivors say the inquiry should be set up under a single High Court (or higher) judge, who has experience of family law.  (It might also be said that the facts which support this ground is ‘irrational’: in context the rational approach of a decision-maker would be to appoint a single chair who can, for example, take evidence and call upon expert assistance.)

Judicial review procedure

The court procedure for judicial review is intended to be relatively quick and simple; and it is only very rarely dealt with in open court, with live evidence being heard. A judge deals with the case on papers put before the court, and on hearing the parties’ advocates.

Judicial review creates a two-stage process (defined by Civil Procedure Rules 1998 Part 54). First an applicant has to get the court’s permission to proceed. Only a minority of applicant’s get past that stage.

The second, and substantive stage, is that applicant’s claims before the court are heard by a High Court judge who must decide whether grounds exist in fact and in law. If the judge says grounds apply, then s/he decides whether or not to make an order. That is to say, the applicant might prove his/her case, but still not get the order he or she seeks (as happened to Ms Mosley in the recent ota Mosley case below: and see https://dbfamilylaw.wordpress.com/2014/10/29/consultation-and-fairness-after-mosely/: she won overwhelmingly on points, but lost in the result).

Grounds for judicial review

More information on how the main judicial review grounds are characterised (based on Lord Diplock’s characterisation in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374) follows:

(1)        Illegality or unlawfulness

By definition a public body can only proceed in a way which is sanctioned by law (by an Act of Parliament, or delegated legislation under an Act). ‘Illegality’ means a failure to act within the law. For example, when the decision-maker contemplates a decision s/he must understand the law on which it is based and must apply the law correctly; and s/he must proceed upon a correct assessment of the underlying facts. If the decision-maker is found not to have proceeded according to his/her statutory powers his/her decision is ultra vires (ie outside powers provided by the law).

It is illegality if a decision-maker fails to take into account a relevant issue or takes into account an issue which is excluded by statute from consideration. For example, local authorities are required to take account of the views of certain prescribed persons when deciding whether to accommodate a child (Children Act 1989, ss 20(6) and 22(4)). In R (ota Mosley) v London Borough of Haringey [2014] UKSC 56 Housing Acts required consultation to be undertaken by those likely to be affected by a decision. To fail to take account of all relevant views, leaves open the risk that the decision may be quashed, because it has not been made fairly.

(2)        Irrationality

The classic formulation of ‘irrationality’ is set out in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, CA: did the decision maker or public body – in that particular case it was a local authority – take into account matters which they should not have done; or did they fail to take into account matters which they should have considered. Even if they did not act in this way, did they nevertheless come to a conclusion ‘so unreasonable that no reasonable authority could have come to it’? A wider definition of ‘irrationality’ is more likely to be adopted by the courts nowadays; but for many judges the Wednesbury formulation remains the starting point.

The operation of the power is one thing. Its rational use within its legal context is quite another; and the question of whether its operation has been correctly reasoned is what is under consideration. The scope for interference by the courts is narrow. Unless the decision-maker exercises his discretion in a way which is so unreasonable that no reasonable decision-maker could have so operated, and he has taken into account the correct questions, then his decision will not generally be said to have been irrational.

(3)        Procedural impropriety

A decision-maker must act fairly, that is to say in accordance with the principles of natural justice. Common law concepts of natural justice have been extended by European Convention for the Protection of Human Rights and Fundamental Freedoms 1950, Art 6(1) (right to a fair trial). A right to a fair trial does not affect the actual rights which the courts are required to protect; but the Article protects or guarantees the procedures (including, for example, evidential rules) by which those rights are protected. Thus the decision-maker must have regard to the two fundamental bases of judicial, or quasi-judicial (as with an inquiry chair) decision-making: namely that the decision-maker must be free from ‘bias’ and that both sides of an argument must be considered by a decision-maker (audi alterem partem).