To many clients, judicial review provides the opportunity to seek redress for the subjectively perceived wrongdoing of a public authority. It is a perception replete with misunderstanding and contradiction.

Most often the complaint is that a body charged with a responsibility to provide public service has ignored the popular will and chosen a course that appears to the complainant to be in its own interest.

With righteous indignation, the complainant ironically wishes to place their trust in the unelected judiciary to take a stand for the people’s liberty against the oppressive system, to do what’s only right and just in the eyes of the common person.

Some will even extend that optimistic faith in the judiciary to their wish to challenge any person or organisation exercising authority in relation to them as individuals.

Trade unions, for example, are often thought to be vulnerable to judicial review of their controversial decisions upon the initiative of a disaffected individual.

Managing expectations

Many practitioners have found it an uphill struggle to explain to clients that it just does not work like that, so provoking only contemptuous criticism that the law is an ass, or that the legal adviser is a wimp too dim to understand that the law is supposed to be about fairness and justice.

Lesson one in judicial review is that democracy prevails and parliament is supreme – even in matters of European law, although this becomes, these days, rather more theoretical than real.

The point is that if a public body or public official has the authority of statute enacted by the elected parliament to do as it has done, then it is not for unelected judges to intervene.

Nor is it for judges to interfere by way of judicial review process in the affairs of private organisations. Private organisations may be answerable to the courts for offences against the law itself and the legally protected rights of others – including their own shareholders or members – but their decisions cannot be reviewed by reference to any duty considered to be owed to the public at large.

That is what judicial review is all about.

It is the court performing the public function of ensuring that other bodies with functions to be carried out for the public good do not do that which they have no legal right to do and do not fail to do what they are legally required to do.

Moving on to lesson two – not everyone can be a complainant just because they are a member of the public. Your client has to be someone who has an interest in the outcome of the case that is greater than that of the generality of members of the public.

Out of order

So, now you have got your client with a legitimate interest and the complaint is that a public body is, in the client’s terms, ‘out of order’. You have just entered the dark wood. You are going to need a strategy to penetrate it.

First you have got to find an act or an omission to be reviewed.

The making of a final decision to proceed with a proposal can be treated as an act and the publication by a public authority of guidance which is claimed to be legally wrong is also an act that is reviewable.

However, a mere proposal cannot be made subject to judicial review unless the authority concerned had no legal power even to put forward the proposal. When a client comes along with a proposal they would want to challenge if it were taken further, the proper step is to write setting out the client’s case.

This is to be coupled with a warning that judicial review will be sought unless the proposal is amended or abandoned.

You then have to pin down at least one of three possible complaints:

  • the authority has failed to do something it was legally required to do;
  • the authority has done something it didn’t have the power to do;
  • the people responsible for making the decision in the name of the authority have acted irrationally.

It is the last of these that many clients will latch on to in order to support the belief that the court will fairly sort things out for them. They tend to substitute ‘unreasonably’ for ‘irrationally’.

The test is definitely one of irrationality, once described by a senior lawyer, with only a little exaggeration, as an allegation that the decision-makers must be regarded as having temporarily taken leave of their senses.

People – even those in jobs with high levels of decision-making responsibility – quite often act in ways that many other people consider unreasonable.

The courts flatly refuse, in this context, to allow themselves to be the arbiters of different points of view of what is reasonable.

Belt and braces

It is pretty obvious then that claims based on irrationality alone are going to be very difficult indeed.

If that is all you have, you are likely to have to show that this public authority, accountable to an electorate or to the elected representative of an electorate, has done something so silly that no reasonable person could consider it sensible.

More commonly, irrationality arguments are attached, as a ‘belt and braces’ job, to claims also made out on the other grounds. Even then some strategic thinking is necessary.

If the irrationality claim cannot stand up, there really is no point in running the risk of leading the court in the wrong direction.

To strengthen the case on either of the first two grounds, you will need to understand clearly what the law actually says and what purpose it has in the public interest.

Law is always better understood and applied when its regulatory objective is understood in social terms.

That is central to judicial review. When what is being challenged is the way in which a public authority is carrying out a public duty, it cannot be expected that the court will construe statute in a purist way which would defeat or limit its purpose.

So if you are dealing with something the authority was legally required to do, but has not done, be as precise as possible in defining the omission.

Similarly, if it is a matter of saying that the authority has exceeded its powers, be as precise as possible about the extent of the relevant power and the definition of the act that is said to have gone beyond it.

Double trouble

There is a particularly important reason to do this – judicial review is a two-stage process in court and there is a pre-action protocol to be followed to get there.

At the first court stage the claimant must secure the court’s permission to proceed to the second stage of a full hearing.

Occasionally the two steps are conflated into one hearing at the option of the presiding judge, but even then, notionally at least, two steps will be taken.

It is important to securing permission that the court should have clarity about the legal issues and about exactly what is at stake.

Then there is the evidence strategy. In judicial review, the court is normally construing the law.

The pre-action protocol for judicial review requires complete candour in the provision of evidence. Evidence of fact is usually uncontested and supported by exhibited documents.

Some relevant evidence of fact may be introduced about the sequence of events leading to a decision and its implementation, and defendant evidence is particularly significant in claims where inadequacy of consultation is claimed.

However, again, contest over this evidence is rare. It follows that evidence before the court in judicial review is normally on affidavit.

The sworn statements for applicant and defendant are likely to be different in what they say about the impact of a contested act or omission.

It is important that these issues are addressed by witnesses whom the court will respect and acknowledge as authoritative.

The courts are not interested in considering for their own sake obscure arguments over acts and omissions that in the end have made little difference to anyone.

The judge must be clearly told, by evidence as expert and authoritative as is available, that the judgment they will give actually matters to the lives of real people.

Lessons learned

The National Union of Teachers has turned to judicial review in several prominent cases, often with dramatic results.

  • In R v Secretary of State for Education and Employment, ex parte National Union of Teachers [2000] a High Court judge ruled that a statutory instrument setting conditions for appraisal and access to higher pay for teachers was beyond the powers given under the Education Act 1996. As a result the statutory instrument was declared void.

The judge declared that education secretary David Blunkett's Education (School Teachers' Pay and Conditions) (No 2) Order 2000, which came into effect on 1 April and effectively rewrote the contracts of 400,000 teachers, was a ‘hybrid and flawed’ document.

The judge ruled that Blunkett had acted outside the powers of the 1991 Teachers’ Pay and Conditions Act. He said the threshold standards should have been placed before parliament, the Welsh Assembly and the School Teachers Review Body. ‘Albeit with good intentions’, the education secretary had effectively ‘evaded scrutiny’ by legislators.

  • In March 2001, Marjorie Evans, the Monmouthshire headteacher who was cleared on appeal of slapping a 10-year-old pupil, won the right to a fair disciplinary hearing after High Court judge Mrs Justice Bracewell ruled that her employer had not followed proper rules and procedures.

    But Bracewell J also found that Mrs Evans had been lawfully suspended after further allegations of pupil mistreatment were made against her, and therefore she should not return to St Mary's Junior School in Caldicot, south Wales, until after a three-day hearing had been held.

    In her ruling the judge said: ‘Mrs Evans faces very serious allegations, but she has been presented with three versions [of disciplinary proceedings] inconsistent with one another and none applicable with disciplining a head teacher.’

    Evans had been suspended on full pay after being accused of slapping a special needs pupil. She was convicted of assault but cleared on appeal. The suspension continued because police were investigating further claims of mistreatment. However, in October 2000 the Crown Prosecution Service said it would be taking no further action.

  • In 1986 Sudbury Infants School headteacher Maureen McGoldrick was suspended by Brent Council for allegedly making a racist remark to one of their officials. A judicial review action, supported by the NUT, was threatened, but the issue was resolved by a direction of the secretary of state.

  • In 2007 a judicial review was threatened against the London Borough of Islington over proposals for a new academy in Islington. The proposal was withdrawn for reconsideration.

  • In 2008 a judicial review was threatened against Bolton Metropolitan Borough Council over the closure of Hayward Community School. The issue was resolved by the postponement of the closure to allow for proper consultation.

  • Consulting room

    There is one common type of judicial review case that illustrates many of the strategic considerations in the pursuit of a claim.

    It is the allegation that the public authority concerned has failed to carry out a proper consultation before making a decision.

    Even when statute does not expressly require consultation prior to the making of a decision, the courts have applied, as settled law, rules and principles which require that public decision-making bodies must consult meaningfully about what they propose to do.

    However, here again, the client’s expectations of what the court can or will do can often be confounded.

    The client may have an unassailable belief that if the decision-makers had only listened to what consultees were saying, they would certainly have been convinced.

    The fact they were not is, the client will believe, incontestable evidence that the consultation has not been proper. This claimant then expects the court to judge the issues. The court will not.

    The law insists that consultation must be genuine. All that is relevant must be taken into account and all that is irrelevant must be denied influence.

    The consultation must also be conducted with an open mind, but this does not mean that the decision-makers cannot come to the consultation without an opinion.

    They may already have narrowed down the options by discarding those preferred by consultee groups. They are not even required to offer choices.

    A consultation on a single proposal may be entirely proper provided that the proposers are at least open to being convinced that they ought to go back and think again.

    They are never required to call upon the consultee constituents to make their decision for them.

    A lawyer will have a lot of questions to ask of a client wanting to sue the system.

    Some of them the client will find surprising, perhaps even frustrating their lay expectations. There really is no point in feeding expectations with undue optimism.

    However, once all the boxes have been ticked and the claim proceeds to a successful conclusion, the outcome can be very satisfying – and not only for the client.

    Most lawyers I know who have acted for successful judicial review claimants have enjoyed some professional satisfaction in striking a blow for the common person against the system.

    It is all to do with our shared commitment to the enforcement of Lord Denning’s assertion: ‘Be you ever so high, the law is above you.’

    Graham Clayton is an education law consultant and former senior solicitor at the National Union of Teachers