Judicial Review
What is Judicial Review?
Judicial review is a type of court process where the judge reviews the lawfulness of a decision or action, or failure to act, by a public body or other official decision maker. This includes consideration of whether a public body acted in accordance with the Human Rights Act 1998 or European Union (EU) law.
What can be challenged through a Judicial Review?
Judicial reviews are not about the rights and wrongs of public body decisions or actions.
They are about the way in which a decision has been made and whether correct procedures have been followed.
They are about the way in which a decision has been made and whether correct procedures have been followed.
In Scotland, judicial reviews are heard by the Court of Session, Outer House, which is located in Edinburgh.
Grounds for bringing judicial review:
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Who can be subject to judicial review:
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Who can ask for a Judicial Review?
When an individual or organisation brings a petition for judicial review, they must be able to demonstrate that they have “sufficient interest in the matter to which the application relates”, often called 'standing'.
Usually the petitioner will be an individual who is directly affected by the public authority decision or other measure – therefore, they will be assumed to have “sufficient interest”.
In other cases, a decision or other measure may not directly impact one individual but still has implications for the wider public. In that circumstance, organisations or groups can bring a petition for judicial review if the court recognises that they have ‘sufficient interest’ in the proceedings.
For example, Friends of the Earth Scotland has taken several cases where they are recognised to have ‘standing’ on environmental interests – it would be difficult in these cases to find one individual directly affected but the review still raises important issues of the rule of law.
The precise definition of what it means for organisations to have ‘sufficient interest’ is still being clarified through case law and is complex. However, it does provide a way in which organisations can potentially raise a systemic issue before the court, without the need for an individual to take a case. For example, read about the case taken by Humanist Society Scotland.
Organisations should always seek early legal advice if they are considering such an approach to strategic litigation.
For cases relating to the European Convention on Human Rights (ECHR) rights, the review must be brought by the individual directly affected, i.e. the ‘victim’. However, the Equality and Human Rights Commission (EHRC) has the statutory power to bring a judicial review that relates to ECHR rights without needing one individual ‘victim’ to be the petitioner.
Usually the petitioner will be an individual who is directly affected by the public authority decision or other measure – therefore, they will be assumed to have “sufficient interest”.
In other cases, a decision or other measure may not directly impact one individual but still has implications for the wider public. In that circumstance, organisations or groups can bring a petition for judicial review if the court recognises that they have ‘sufficient interest’ in the proceedings.
For example, Friends of the Earth Scotland has taken several cases where they are recognised to have ‘standing’ on environmental interests – it would be difficult in these cases to find one individual directly affected but the review still raises important issues of the rule of law.
The precise definition of what it means for organisations to have ‘sufficient interest’ is still being clarified through case law and is complex. However, it does provide a way in which organisations can potentially raise a systemic issue before the court, without the need for an individual to take a case. For example, read about the case taken by Humanist Society Scotland.
Organisations should always seek early legal advice if they are considering such an approach to strategic litigation.
For cases relating to the European Convention on Human Rights (ECHR) rights, the review must be brought by the individual directly affected, i.e. the ‘victim’. However, the Equality and Human Rights Commission (EHRC) has the statutory power to bring a judicial review that relates to ECHR rights without needing one individual ‘victim’ to be the petitioner.
Judicial Review – issues to consider
3 month timescale:
A petition for judicial review must usually be brought within 3 months of the event occurring which is the basis for the review. In limited circumstances the court may accept a petition that is not brought within the 3 months but this is relatively rare - you should seek legal advice if you are concerned about this time limitation. |
Other remedies first:
Before an individual brings a judicial review petition, they are expected to have sought a solution through other avenues first. For example, they should first use complaints or appeals mechanisms. Given that there is usually a 3 month deadline for judicial review petitions (see left), legal advice should be sought as early as possible. |
Real prospect of success:
A petition for judicial review must be granted permission to proceed in the courts. In order to be granted permission, the Court of Session must be satisfied that the arguments raised in the petition have a real prospect of success. Establishing whether there is a real prospect of success is one reason why an organisation might seek a legal opinion before proceeding with litigation. |
Finding the 'right' case:
Sometimes it can be difficult to get strategic change through judicial review because it can be difficult to find an appropriate and willing individual to be the petitioner. If your organisation provides support or advice services, do you have a way of identifying potential strategic cases? Working closely with other organisations and with solicitors and making them aware of the type of ‘case’ that you are looking for, can also help to flag up relevant cases. |
Being the petitioner in a judicial review can be difficult.
Organisations and individuals need to consider:
Emotional Toll Depending on the nature of the case, it can be emotionally difficult for an individual petitioner to talk about their personal circumstances and difficulties in court. The outcome might also not be what they want. How emotionally vulnerable is the individual? What support can you provide or not provide? What support do they have in place and what support might they need? |
Publicity If the judicial review brings strategic change, it is likely that there will be publicity surrounding the case. Indeed to help bring strategic change, publicising the case outcome can be very important. Is the individual prepared and willing to handle such publicity, with support? Do they wish to remain anonymous or are they willing to talk to media or provide a statement? |
Timescale Judicial reviews can take a long time, sometimes months or years. Is the individual prepared for a lengthy process? Do they have the financial means to sustain the litigation? (See Step 7) Will the individually be available for the duration? |
Individual's best interests When an individual brings a judicial review, the solicitor and advocate are duty-bound to make decisions in their best interests – and these are not necessarily in the interests of change on the strategic issue or the organisation. This can extend to decisions about the types of legal arguments which are brought forward in the litigation. When supporting an individual in judicial review, organisations need to be very clear that the solicitor/advocate’s relationship is directly with their individual client, not with the organisation. |
Multiple petitioners Sometimes in order to strengthen a case and to lessen the burden on a sole petitioner, it can be best to have more than one petitioner in a judicial review. This also protects against the situation where a petitioner pulls out during the process. It can also help to raise related but slightly different issues in order to get a more significant outcome. Take legal advice on whether you should seek multiple petitioners. |