Subsequently the states adopted the same view, and their superior courts commonly nullify acts of legislatures or governors that conflict with the state constitutions. Constitutions adopted by other countries, such as Germany, Italy, India, and Pakistan, often provide for some form of judicial review. Great Britain does not recognize judicial review; the final authority in British law is Parliament. In exercising their power, justices of the U.
Supreme Court have sometimes been accused of writing their own political views into the Constitution. Their overturning of some of the New Deal legislation of the s brought proposals to reorganize the Court. For this reason, some justices have urged the Court to be restrained in exercising its power. The Court generally observes the principle that any attack upon the validity of a statute must overcome a presumption of its constitutionality.
The Court has also stated that it will not judge the wisdom of particular legislative and executive actions and will avoid political questions, but these principles have been interpreted differently by different justices. Create a List. List Name Save. This is known as a pre-action protocol or PAP letter. A response is normally requested within 14 days. However, in planning cases, the 6 week time limit to issue a claim does not leave much or any time for pre-action correspondence.
This is a particularly important stage of the procedure as it is the first opportunity to test your legal arguments. It is not unknown for the defendant to concede that it has acted unlawfully at this stage, thus avoiding the need for legal action. This involves the completion of a claim form, setting out your facts, your grounds why you consider the decision was unlawful , the background to the case with relevant legal provisions and, if you are applying for costs protection, a short statement of your financial means see the section on Costs, later.
This is often the most intensive part of the process for the claimant. We will instruct counsel either a junior or a QC or both if the case is complex to advise and draft the statement of facts and grounds.
Once the case is issued, we serve the defendant and any interested party for example, the holder of the planning permission with the papers. They can and almost always do submit "summary grounds of defence" to explain why it is unarguable and permission should not be granted. In practice, there is a short window of opportunity to reply to those defences. The court then sends all the correspondence to a judge for a decision on the papers.
The test for permission is that you have an arguable case. The Court will weed out cases where it cannot see any arguable error of law, where the claimant cannot show standing or is deemed to be acting vexatiously, or if the case is academic in the sense that it would make no real difference on the ground.
If permission is refused on the papers, you can "renew" the decision to be heard in open court. The other parties may or may not attend.
Our experience is that permission is often refused on the papers but granted upon renewal in open court. Sometimes the judge will order that the matter be referred to open court anyway.
Just because you have initially been refused permission on the papers does not necessarily mean that you have a weak case — we have had such cases that have ultimately gone on to be successful. If permission is granted, the claim proceeds to a full hearing. We await evidence from the defendant, and any interested parties who tend to put in large amounts of evidence.
Sometimes - particularly in urgent cases - a judge may order that both the permission stage and substantive stage be heard at the same time "a rolled-up hearing". This is more likely to happen where one party has made an application for the case to be expedited heard sooner. A rolled-up hearing has the advantage of getting the matter dealt with quickly and in practice is cheaper than the more drawn-out, two stage procedure.
However, it can have costs disadvantages. The final hearing will usually take place a few months after receipt of evidence from the other parties and the claimant filing any further evidence. A few weeks before the date fixed, counsel for both sides will submit "skeleton arguments" - summaries of the respective legal cases. The judge should pre-read these and essential parts of the papers.
If this is done, the hearing itself can proceed quite rapidly. JRs seldom take more than three days and are often over within one day. The judge may deliver judgment there and then or orally shortly afterwards but more usually it is "handed-down" in writing later.
With oral judgments, a transcript can be obtained, but may have to be paid for. After judgment is given, there is usually a debate about who pays the costs, and whether permission should be given to appeal the decision.
Judges usually refuse permission to appeal, and the losing party usually has to apply to the Court of Appeal directly for permission. Going to court is expensive. However, the position is more favourable for claimants in environmental cases because the UK is Party to an international agreement called the Aarhus Convention. The general rule in costs is that the loser pays the winner's costs. Additionally, the courts are reluctant to entertain challenges to decisions relating to the internal procedures of the United Kingdom Parliament and challenges to decisions of the superior courts of England and Wales e.
Challenges to decisions relating to the validity of Acts of Parliament have traditionally been outside the remit of judicial oversight although there are certain areas, such as compliance with European Community law, which the courts may investigate. The courts have also shown an unwillingness to pass judgement on certain issues such as national security and economic policy.
There have traditionally been three grounds for judicial review. These are i llegality, irrationality, and procedural impropriety. These categories are not exhaustive nor mutually exclusive. The most obvious example of illegality is where a body acts beyond the powers which are prescribed for it. In other words, it acts ultra vires a concept imported from company law.
There is a fundamental hierarchy in English law which comprises 1 European legislation, 2 primary legislation, 3 subordinate legislation and 4 decision-making. Illegality can occur where any of these is inconsistent with the parameters imposed by a superior source of law. In April , Npower successfully challenged Milton Keynes Council's decision to implement a new planning document that would introduce minimum separation distances between wind turbines and residential properties on the basis that the document was in conflict with the existing local plan and national legislation on wind energy Decisions taken for improper purposes may also be illegal.
So, for example, the decision of a council not to do business with Shell on the grounds that Shell had interests in apartheid South Africa was held to be unlawful While it would have been legitimate for the decision to be taken merely on the basis that it would improve race relations in Lewisham, in this case it had also been taken to exert pressure on Shell to end its involvement in South Africa.
This constituted an improper purpose. A further category of illegality is where a body either abdicates or delegates responsibility for a decision or impermissibly fetters its discretion. It has been accepted that it is a practical necessity of administration that responsibility be devolved rather than delegated in certain cases so, for example, it is permissible for a duly authorised civil servant to exercise a power granted to his Minister However, a body may not surrender its decision-making responsibilities to another body.
Similarly, a body must not blindly follow policy guidelines where it is required to exercise its discretion; it must maintain an open mind.
Illegality also extends to circumstances where the decision-maker misdirects itself in law. When exercising a discretionary power, a decision-maker may take into account a range of lawful considerations. If the exercise of the discretionary power has been influenced by considerations that cannot lawfully be taken into account, or by the disregard of relevant considerations required to be taken into account, a court will normally find that the power had been exercised illegally.
One of the most well known grounds of challenge is on the basis that a decision is irrational or unreasonable. In the leading case, a local authority granted a cinema licence pursuant to legislation which granted it a discretion to impose such conditions as it saw fit A licence was granted subject to the condition that no children under fifteen years of age should be admitted to Sunday performances with or without an adult.
It was held that the authority had not acted unreasonably. The court was entitled to investigate only whether the authority had taken into account matters that it ought not to, or had disregarded matters that it ought to have taken into account.
The courts have raised the bar for irrational or unreasonable behaviour. This is because they do not want to stray into territory which requires them to pass judgement on the merits of decisions rather than the process by which they have been made.
One formulation of the test is that an irrational or unreasonable decision must be "so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" There has been criticism of the extreme formulations of the test but it remains the case that it is difficult to bring a successful judicial review on the basis of irrationality or unreasonableness.
English law imposes minimum standards of procedural fairness. This concept is founded upon the principle of natural justice. The "twin pillars" of procedural impropriety have been described as "the rule against bias" and "the right to be heard" The right to be given reasons for a decision is also an integral element of procedural fairness.
While actual bias is relatively rare, it is a conclusive factor in disqualifying a decision-maker. More common is where apparent bias is alleged.
The courts have adopted a test of whether there is a "real possibility" of bias. In other words, "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the [decision] was biased" Thus, where the chairman of a planning committee had a close relationship with developers, apparent bias was found However, an adjudicator of a construction dispute was not apparently biased in circumstances where he had ruled previously on the dispute and where he had engaged in a telephone conversation with the solicitor of one of the parties The right to be heard is fundamental in criminal and asylum cases, but also extends to commercial situations.
A flawed consultation process restricting the right to be heard is now a common ground for judicial review. In many situations, a decision maker will be required to consult by statute, and any flaw in that process may vitiate the final decision. In March , HS2 Action Alliance, a not-for-profit organisation working with other action groups opposed to the Government's proposal to build the "High Speed 2" rail link, were successful in their claim that the consultation process for the compensation scheme for blighted properties, on or near the route of HS2, was flawed The court held that the consultation period was so unfair as to be unlawful.
The Government had failed to provide adequate information to consultees on the practical implications of the proposed schemes and had failed to conscientiously consider the claimants' consultation response. In relation to the right to reasons, there is a large body of case law that supports the existence of this general duty There is an obvious rationale for reasoned decisions: it enables claimants to assess whether a decision has been made for illegal or irrational reasons.
Allied to the ground of procedural impropriety is the notion of "legitimate expectation". This is sometimes considered as a discrete ground for judicial review and arises where a party has been given an expectation that a body will act in a certain way, either because of express statements from the authority, or from prior conduct.
It is likely that for a legitimate expectation to arise there will need to have been a clear promise or evidence of a regular practice The challenge to the Government's decision to scrap the "Building Schools for the Future" programme is an example of a successful claim on the basis of legitimate expectation.
The issue in this case was that the Government made its decision without conducting a consultation. The claimants, five local authorities, each of whom had committed to building schools under the BSF programme, successfully argued that they had a legitimate expectation to be consulted before the decision was made The court held that, in view of the fact that the BSF programme had previously been run as a partnership basis between central and local government, project-specific decisions could not lawfully be made abruptly without some prior consultation.
Detailed analysis of the provisions of the Human Rights Act is beyond the scope of this note. However, section 6 1 of the Act provides that "it is unlawful for a public authority to act in a way which is incompatible with a Convention right".
This may provide an independent ground for judicial review. Judicial review is not intended to provide a means for the merits of decisions to be challenged. Because of this the following remedies are available:. A successful judicial review will often result in a quashing order and an order that the matter be remitted to the decision-making body for reconsideration.
It is important that it is understood that this will not necessarily result in a different outcome from the original decision.
Where the original decision was unreasonable or unlawful, then the same outcome may be precluded. However, where there has been a procedural defect it is possible that the same decision will be reached again. In certain instances, a successful judicial review may leave a claimant in a worse position than it was in originally.
It is a principle of judicial review that remedies are discretionary. So a claimant may be able to show that a decision-maker has acted improperly but the court may decline to grant the remedy sought.
The court may make a declaration or order an injunction where "it would be just and convenient" in "all the circumstances of the case" There is no right in judicial review to claim damages for losses caused by unlawful administrative actions. It is only possible to receive damages in judicial review claims if there is another established cause of action, separate to the ground for judicial review, such as breach of statutory duty, misfeasance in public office or a private action in tort.
For example, where a decision-maker takes into account an irrelevant decision, as well as providing grounds for quashing the decision on the basis of illegality, this may create a right to damages for misfeasance in public office if it can be proved that the action complained of was done knowingly or maliciously.
Where a separate cause of action accrues, the claim for judicial review may include a claim for damages to avoid the need to bring parallel proceedings. While damages are not available that is not to say that there is no financial gain to be had from bringing a judicial review claim. The publicity associated with a judicial review claim will often encourage a public body to retract a decision or settle the dispute. The detailed procedure for making a claim for judicial review is beyond the scope of this Quickguide.
0コメント