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Judicial Review

Judicial Review

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Judicial Review

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  1. Judicial Review • Judicial review • means by which courts control the exercise of governmental power • ensure that public bodies (government departments; local authorities; tribunals, etc) exercise their powers in a lawful manner • concerned with legality of decisions NOT merit

  2. Judicial Review • Public law and Private law • public law • concerned with the state and with relationship between individuals and state administered in ordinary civil and criminal courts and special constitutional courts • private law • concerned with relationships between individuals

  3. Judicial Review • available to test lawfulness of decisions by public body NOT private bodies • must be distinguished from an ordinary appeal against a decision • appellate courts • appellate jurisdiction over civil and criminal courts • judicial review court • supervisory jurisdiction • concerned with the manner in which the decision-making body has applied the relevant rules • no direct ‘right’ to judicial review • seek ‘leave to appeal’ before a judge in the Queens Bench of the High Court

  4. Prerogative orders Certiorari – quashes the original decision Prohibition – commands public to refrain from an illegal action Mandamus – commands public body to perform its duty Private law remedies Declaration – declares what the legal position is Injunction – commands action Damages Administrative Law

  5. Judicial Review • Basis of Judicial Review • Supreme Court Act 1981 • Rules of Supreme Court Order 53 • Application for judicial review • application within 3 months of cause for complaint • application made to High Court Judge (Queens Bench Division) ex parte (without having to give notice to the decision-maker)

  6. Judicial Review • Grounds for judicial review • illegality • decision transgresses powers given to the public body • irrationality (Wednesbury unreasonableness) • decision irrational or unreasonable • procedural impropriety • failure to observe the rules of natural justice or comply with procedures laid down by statute

  7. Judicial Review • NHS rationing of health care resources • judicial review of rationing raises questions of: • legality of rationing – statutory duties; priority setting; services within NHS; NHS Directions and Guidelines • reasonableness of rationing - allocation of resources; clinical freedom; evidence-based guidelines: NICE; discretion • Procedural propriety – processes for consultation and appeal