Hello and welcome to the Judicial Review part 2 webcast.

In this particular webcast

were going to be following on looking at the 7 questions that I said we need to better
understand in order to better understand what Judicial Review is. The three
questions that we are going to be looking at in this webcast are:

5. Upon what basis can decisions be reviewed?

6. How do you go about making a Judicial Review?
7. Where does Judicial Review come from - what are the constitutional
justifications for it?

So, question number 5, on what basis can a decision be reviewed? Now, a Judicial
Review claim will only succeed if you use an established ground. The three grounds
that we are going to be looking at come from a case called CCSU, which Ill mention
in the future. The three main grounds, as named by Lord Diplock are illegality,
irrationality and procedural impropriety. These are the legal terms, or special names
that are given to these grounds. This is the whole basis upon which a Judicial Review
claim is based. Now do remember that the courts are not concerned with the merits
of a decision. It is not an appeal; it is a courts review mechanism. It is concerned
with the way in which a decision is taken. So if a decision is taken in an illegal way
the courts will intervene. If it is taken in an irrational way, the courts will intervene.
Or, if it has been taken contrary to procedural propriety, so contrary to the rules,
again the courts will intervene. So they are the three main grounds, illegality,
irrationality and procedural impropriety. Now we are going to come back and focus
on those in more depth. That is the bulk of the work within Judicial Review so we will
come back to those later.

Now question number 6 asks how you go about making an application. How do you
bring a Judicial Review Claim? The procedure for making a Judicial Review is set
out in a couple of different places. As this is part of Civil Law, the Civil Procedure
Rules set out the procedure for making a Judicial Review. The Civil Procedure Rules
were brought about in 2000 by the Woolff Reforms to Civil Justice. Part 54 details the
procedure for Judicial Review. They set out things like what forms you have to use,
what you have to do with them, the timescales, and time limits for bringing a claim.
They set out the details of what you have to do and when. Now whether you are
familiar with the Civil Procedure Rules or not, they have something called Practice
Directions. These are kind of guidance, if you like for how the Civil Procedure Rules
work. So Part 54 is accompanied by a Practice Direction. That sets out a little bit
more information about how the rules work and are applied.

In addition to this there is also Pre-Action Protocol for Judicial Review. Certain areas
of Civil Law have these things, these Pre-Action Protocols. What these are, the
purpose of them is to try and get parties to settle disputes amicably without having to
go through litigation and the court procedure. It is a big push towards Alternative
Dispute Resolution (ADR). The Pre-Action Protocol says that pre-action, i.e. before
you bring a claim for Judicial Review, you should follow certain guidelines to try and
settle your claim. If you dont follow those Pre-Action Protocols, the courts will take
that into account, firstly when deciding whether to allow you to bring a claim, and also
in relation to things like costs. The Pre-Action Protocols can therefore be important
and are taken into account by the courts. There is a Pre-Action Protocol for Judicial
Review.

Also remember that Section 31 of the Senior Courts Act 1981 sets out some rules for
Judicial Review Applications, which we set out in the last webcast, about having to
have sufficient interest etc. So have a look at some of those things for yourselves.
See if you can find links to them. Have a look at those rules and flesh them out for
yourselves, so you can understand them a little bit better.

With the Pre-Action Protocol you will see that Defendants should write to bodies
before issuing a claim to explain what the problem is and what they want to happen.
The Pre-Action Protocol says that these bodies should reply as it encourages
exchange of materials and a dialogue between the parties to try and resolve the
dispute. Resolution can be reached without going through the court procedure,
avoiding all that time, stress and inconvenience and costs could be reduced. If you
have been through that and cant reach a resolution to the dispute then you will have
to go on and complete a Claim Form.

So the relevant Claim Forms Form N461, that has to be completed and sent to the
Administrative Court Section of the High Court. That Claim Form asks for permission
to bring the Claim itself and asks for a substantive hearing. Now have a look at that
Claim Form, its not very long, its easily worded and familiarise yourself with what
you have to do to bring a claim, the information that has to be put on there. It is
important to remember that you have to ask permission to bring a claim. This is
another important thing to remember about Judicial Review. That is the whole thing
behind Judicial Review. A lot of aspects of it are discretionary. It is at the discretion of
the court. There is no right that you have to have a Judicial Review hearing. This is
different from Appeals where you might have the right to Appeal. This is very
different, you actually have to ask the permission of the Court. This used to be called
leave. You had to have the leave of the court. If the court grants you permission to
bring the claim, it will grant you a substantive hearing. This permission procedure for
Judicial Review is paper-based. It is done on the papers, as we call it. A Judge will
sit in chambers looking at these cases on paper and decide whether to rubberstamp
it and give permission for it.

In doing that the Judge will look at a number of things. Firstly, is the claim within the
time limits? Do they have sufficient interest in the matter? Does person bringing this
claim have sufficient interest? Remember that is what we looked at in the last
webcast. The Judge will also consider whether the person bringing the claim wants
to review a public body. Finally, he will consider whether the person exhausted all
other available remedies? That is another important point to bear in mind. If you
have another mechanism of redress, the court will not grant permission. So, for
example, if there are Appeals mechanisms, complaints mechanisms, you have to
have exhausted those before you can bring a claim for Judicial Review. That is why
Judicial Review is often called a last resort mechanism. It is a fall back mechanism,
it is a constitutional safeguard to prevent injustice.

It is discretionary it is not available as a right, which is why you need the permission
of the court. Why do this? Well, this filters out what we call vexatious claims,
vexatious litigants and stops the court system getting clogged up with unmeritorious
claims. Another very good reason for this is to prevent the actual machinery of
Government being clogged up and maintain the efficient working of Government.
Otherwise, it would have to continually stop its main business in order to explain
itself. There are remedies for certain people, there have to be some limits, but that
does have to be done equitably. That has to be done fairly to ensure that people can
have redress when it is needed. That is why we have these particular mechanisms
in place. So permission wouldnt be granted if you were unable to show that you
have an arguable case, perhaps or there has been undue delay, you havent
complied with the time limits or have alternative methods of redress available.
If permission were refused, you could ask for the matter to be reconsidered at an oral
hearing. Remember this is usually done on the papers. You could do this in person
to try and persuade the Judge to rubberstamp this and give you permission for a
hearing. If permission is still refused at that point you could then apply to the Court of
Appeal for permission to appeal against the High Courts decision. If that goes
against you, thats it.

Time limits then, which are set out at Part 54 of the Civil Procedure Rules. They set
out the time limits, because there are strict time limits for Judicial Review. Firstly you
have to file your claim, promptly. Secondly, in any event no later than 3 months after
the grounds which form the basis of the claim first arose. 3 months is not very long
at all. Do note the word promptly which is used first of all. You have to bring it
promptly and in any event within 3 months. There is case law to suggest that if you
bring it within the 3 months this may not be deemed to be promptly anyway resulting
in the claim being refused. Those are very strict time limits. They need to be adhered
to.

The final question, we need to answer then in order to increase our knowledge of
Judicial Review is question 7 is where does it actually come from? What are the
constitutional justifications for Judicial Review? There is no single answer to this that
is agreed by everybody. This is a disputed area because we are getting into the
realms now of legal theory. There are two main constitutional justifications or
theories as to where Judicial Review comes from. So for those of you that
particularly like theory, these are two good areas for you to look into further. These
two main theories that I will look at briefly now are Ultra Vires and the Common Law
Theory.

So first of all, the Ultra Vires theory, the substance of this is that Judicial Review is a
spin off from Parliamentary Supremacy. Remember that Parliamentary Supremacy
says that Parliament is the ultimate legislative body and lawmaking power within the
Constitution and no other bodies can override or set aside that which Parliament
does. That is the traditional or orthodox view of Parliamentary Supremacy. The Ultra
Vires theory of Judicial Review says that Judicial Review is kind of a spin off from
that. Parliament bestows powers upon various public bodies, so it gives them
powers. Therefore, the courts by implication are given jurisdiction to review these
bodies to ensure that they do what Parliament has allowed them to do. In other
words to make sure that they are not acting Ultra Vires (a Latin phrase), beyond the
power so to make sure they are not going beyond the power that Parliament has
given them. That is one theory as to where Judicial Review comes from and why it is
justified in constitutional terms.

The other theory, the Common Law Theory, opposes the Ultra Vires theory. It says
that the Ultra Vires theory doesnt explain things adequately and is not accurate
enough. Common Law Theory says that Judicial Review does not come from an
implied jurisdiction from Parliament, rather the power of the courts to conduct Judicial
Review comes from the courts themselves, it comes from the constitutional rules
themselves. They also say that is where Parliament gets its power too. So, if you
like, we have the Constitution as the over-arching principle and the Constitutional
Rules. Both Parliament and the courts derive their powers from these Constitutional
Common Law Rules. Neither is above the other, they both spawn from that. So
thats the common law theory of Judicial Review.

Both have pros and cons, and neither has won the argument outright for everyone.
Have a look at those theories for yourselves and see which one you agree with most.
Thats it for this webcast and this introduction. Have a look at webcast 1 as that
gives an overview of what Judicial Review actually is. What we are going to look at
next in these webcasts are the substance of claims, the substantive grounds for
Judicial Review, illegality, irrationality, procedural impropriety, etc.