Introduction
27.1Judicial review is the power that the High Court derives from common law to supervise public functions, so as to ensure that they remains lawful. As Civil Procedure Rules 54.1(2)(a) provides, ‘a “claim for judicial review” means a claim to review the lawfulness of – (i) an enactment; or (ii) a decision, action or failure to act in relation to the exercise of a public function’.
27.2Judicial review is a supervisory jurisdiction, different from both ordinary adversarial litigation between private parties and an appeal on the merits. The question is not whether the judge considers that an enactment or what a public body has done is right, but whether the lawfulness of either is undermined by some recognisable public law wrong. In
Reid v Secretary of State for Scotland,
1[1999] 2 AC 512 at 541F–542A.Lord Clyde explained judicial review in this way in the context of applications for ‘judicial review’ of decisions:
Judicial review involves a challenge to the legal validity of the decision. It does not allow the court of review to examine the evidence with a view to forming its own view about the substantial merits of the case. It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision-maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence.
27.3The main uses to which judicial review is put, in order to safeguard and promote the welfare of vulnerable adults, is (i) to supervise the lawfulness of decisions by public authorities about what services to offer, (ii) to ensure that human rights have not been violated.