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Public Law To understand the Judicial Review firstly, we need to look at the area of Public Law. Public law, is concerned with the relationship between 'us' as individuals and the State authorities. Public law is then sub-divided into: Constitutional law, which involves the study of the Parliament and the main institutions of government; Civil Liberties, which looks at issues such as human rights and the limiting of police powers; and Administrative law, which focuses on the legal aspects of the day-to-day administration by government and local authorities and how the individual can gain access to redress for a grievance they have against a public body. It is Administrative law which is important here and the part that is of particular importance is the procedure by which an individual or an 'interested' party can question the legality of an action taken by a public body. The government and local authorities amongst others are elected and are given powers to enact legislation for the benefit of the country. In a democracy, the people who govern us have to do so with our consent. One of the responsibilities of government is therefore to provide people with adequate opportunities to question the good sense and lawfulness of public decisions. Purpose of a Judicial Review The court's role in judicial review is different to that of a court's jurisdiction in other areas. Ordinarily, a court can concern itself with the merits of the actual decision made and change it if the court thinks fit. In judicial review, however, the court is not allowed to change or re-take the decision made by the public body. The court is merely given a 'supervisory role', they are supervising the legality of the decisions made by public bodies. This means that the courts are only allowed to 'check' that the public body, in taking a decision, is acting within its authority. The same situation applies to the appeals procedure. The appeal court has no power to change the decision it is merely supervising the legality of it. The powers that the court has in providing a remedy are restricted to 'orders'. These 'prerogative orders' have the effect of quashing a decision (certiorari), prohibiting an act (prohibition) or making an act mandatory (mandamus). The court can only make an order for the public body to act or not, it can not enforce the order. It is very unlikely, however, that a public body would ever act contrary to the order of the court. Permission and Full Hearing Before seeking a judicial review of an action of a public body, all other avenues of redress have to be exhausted. These avenues of redress, being methods of dispute resolution, include the internal complaints procedures, ombudsmen and specialist tribunals. If the individual or interested party is not satisfied they can apply to the High Court of Justice of England and Wales for permission to have their grievance heard at a full hearing. The 'permission stage' has been introduced since the abolition of the old procedures following the recommendations of Lord Woolf and the Bowman Report. A single judge sitting in the High Court hears the grounds and gives permission or not for the judicial review to go to a full hearing. The new rules pertaining to judicial review are contained in Part 54 of the Civil Procedure Rules. When permission has been granted for a full hearing, a date is set for the evidence to be presented and for the full hearing. The date for the full hearing can take anything up to 6-9 months from the permission stage. In some cases what is called an interim interlocutory injunction is sought. If granted this order would suspend the operation of the offending legislation or decision, in the intervening period. At the full hearing, which is heard in the Administrative Court at the High Court of Justice, the matter can be heard before a single judge or up to three judges. The parties to the application for judicial review are called the Claimant, being the person(s) seeking redress and the Defendant, being the public body against whom the proceedings are brought. Part 2: Remedies, Appeals Process & European Courts |
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