Commonwealth Origins Post Pandemic Covid 19 United Kingdom In Judicial Review

By Author: premkumar nadarajan.
Total Articles: 32
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Judicial review is the principal mechanism used by the courts to police the exercise of public law functions. This is a constitutionally important aspect of English law. It seeks to ensure that bodies exercising public law functions act lawfully and fairly and do not abuse their powers.

There are a number of common misconceptions about judicial review. It is important to be aware that:

Judicial review is not concerned with the merits of decisions. It focuses on the process by which decisions were made and actions taken;
Judicial review is not confined to reviewing the decisions of public bodies. Any party exercising a "public function" may be subject to judicial review proceedings; and
Judicial review is a remedy of last resort. It is only available where all alternative avenues of challenge or appeal have been exhausted.
Judicial review has been described in one Government publication as "a growth industry". In 2000, 4,250 judicial review applications were made but by 2011 this number had increased to 11,000. Although largely due to immigration and asylum matters, judicial review is ...
... increasingly used in the commercial sphere. This trend is likely to continue as businesses face greater regulation and administrative oversight.

Businesses may wish to challenge decisions by means of judicial review, intervene in judicial review proceedings which are of relevance to them, or may even be subject to an application for judicial review.

The first question that is likely to emerge when judicial review proceedings are under consideration is whether the party which has done something which may give rise to a challenge is susceptible to review.

The definition of "judicial review" in the Civil Procedure Rules governing English court proceedings (CPR) refers to "a decision, action or failure to act in relation to the exercise of a public function". It is significant that the definition focuses on the nature of the function being performed rather than the body performing it. In reality the category of bodies whose functions may be challenged is constantly evolving.

The courts have adopted a flexible approach to determining whether a body is subject to judicial review. There is no single test.The following characteristics have been considered relevant to whether an act or function can be reviewed.

The "but for" test: in other words, whether, but for the existence of a non-statutory body, the functions exercised by such body would inevitably be regulated by statute. Bodies which have been considered amenable to judicial review using this test include the Advertising Standards Authority and the Takeover Panel3. However, the Football Association's decisions escaped review as the court held that if the Football Association did not exist, the state would not have found it necessary to perform its functions.
Statutory "underpinning": where the government has encouraged the activities of an organization by providing "underpinning" for its work, or the body was established under the authority of the government, this can constitute grounds for a body to be considered to be exercising a public function. However, the fact that a body is recognized in legislation (as, for instance, the Football Association was in the UK Football Spectators Act 1989) is not sufficient to bring its activities within the remit of public functions.
Extensive or monopolistic powers: the fact that a body exercises extensive or exclusive functions may be a relevant factor. The Takeover Panel was described as having "a giant's strength". However the exercise of extensive power in the private sector is not necessarily sufficient and the number of people affected or the seriousness of the impact of a decision are not necessarily conclusive.
The result of the multiple tests employed by the courts and the flexible approach taken is that certain decisions which might not necessarily be considered likely to be appropriate for judicial review have been reviewed by the courts. These include those of:

The managers of a private psychiatric hospital because there was sufficient statutory underpinning and public interest in the care of patients;
A registered social landlord who operated within a sector which was permeated by state control and worked side-by-side with public authorities and who received substantial public subsidies;
An independent school regarding an assisted place;
A privatized water company exercising statutory powers (although as a commercial organization it was entitled to act in the interests of its shareholders and not merely in the public good); and
An airport operator in relation to noise pollution and vibrations felt by local residents.
No application for judicial review may be made unless the court has granted leave. The court will only grant leave if it considers that the applicant has sufficient interest in the matter to which the application relates. The courts have adopted an increasingly liberal approach to the "sufficient interest test". This is in recognition that it is desirable that the courts allow, in appropriate cases, responsible citizens to bring claims for the benefit of the public. However, it should be remembered that the purpose of the test is to ensure that frivolous and vexatious litigation against public bodies is avoided. The applicant's interest will be assessed in the context of all factual and legal circumstances in the case, for example: Strength and importance of the grounds of challenge: in a claim regarding the decision of the UK Government to approve aid for the construction of a dam and hydro-electric power station in Malaysia, the judge said that "the merits of the challenge are an important, if not dominant, factor when considering standing".

lecturer at a private learning institution ( UTAR).