Judicial Review Asks How a Decision Was Made

Public bodies make decisions affecting individuals constantly. The route for challenging them examines something narrower than whether the decision was right.

Legality rather than merits

The supervisory role is generally concerned with whether the decision-maker acted within their powers, followed a fair procedure and reached a decision open to them.

A court in this role does not usually decide the underlying question itself. The typical outcome is that the decision is quashed and remade properly.

That distinction frustrates applicants who want a different answer. The remedy is a fresh decision, which may reach the same conclusion lawfully.

Grounds of challenge

Common grounds include acting outside statutory powers, taking irrelevant considerations into account, ignoring relevant ones, procedural unfairness and reaching a conclusion no reasonable body could reach.

The threshold for the last of these is deliberately high. Disagreement with a judgement lawfully made is not a ground.

Proportionality is recognised as a further ground in some systems, particularly where fundamental rights are engaged. Its availability is one of the clearer differences between jurisdictions.

Procedural fairness carries most of the caseload

Being told the case against you and having an opportunity to respond is a recurring requirement across systems. So is a decision-maker free from bias or the appearance of it.

Duties to give reasons vary but are increasingly common, particularly where rights or livelihoods are affected. Reasons make review possible, which is much of their purpose.

Legitimate expectations created by a body's own published policy or clear promises can also constrain it. Departing from them usually requires explanation.

Standing, alternatives and timing

Applicants generally need sufficient interest in the matter, though the strictness of that requirement differs. Public interest bodies are admitted in some systems and not others.

Courts commonly require alternative remedies such as internal appeals or ombudsman schemes to be exhausted first. Skipping them is a frequent reason for refusal.

Permission to proceed is also required in many systems, filtering out weak claims at an early stage. That filter disposes of a large share of applications.

Deadlines are unusually short

Time limits for these challenges are typically much shorter than for ordinary claims, on the reasoning that public administration needs certainty. Delay alone can defeat an otherwise strong case.

Because the grounds, standing rules, remedies and deadlines are entirely jurisdiction-specific and the timescales tight, anyone considering a challenge to a public decision should consult a lawyer without delay.