Challenging decisions and conduct of government agencies
Going to the courts: “Judicial review”
Overview of judicial review
Judicial Review Procedure Act 2016
If a government agency or official has made a decision affecting you under a power granted to them by an Act, you might be able to apply to the High Court for a “judicial review” of the particular decision. A wide range of public-sector bodies and individual decision-makers can be challenged by judicial review (e.g., state schools).
The judge usually won’t look at whether the decision-maker made the “right” decision, but will look instead at the way the decision was made – for example, whether you were given the chance to have your say, and whether the decision-maker considered all the relevant factors. The court’s role isn’t to substitute its own decision for that of the relevant agency or official, rather it’s to make sure the decision-maker acted within their legal powers – in particular, that they followed the process that the law requires.
The right to apply for judicial review through the High Court is a central part of the “rule of law”. A core role of the courts is to enforce legal rights and obligations, and judicial review specifically is a key way of making sure that government bodies and officials act within the law.
Judicial review has been used to challenge a wide range of decisions and decision-makers. It’s been used by large businesses to challenge government decisions refusing them various kinds of commercial licences (fisheries or broadcasting licences for example), but also by parents to challenge disciplinary decisions by school boards of trustees about their child. However, as we explain below under “Disadvantages of judicial review,” judicial review is often not a practical way of getting the outcome you want, and going to the Ombudsman instead will often be faster and more effective (see: “The Ombudsman: Watchdogs over government”).
Note: This area of the law is complicated, and in this section, we give only a short summary of the main features. If you think going to the courts may be a viable option for you, you’ll need to talk to a lawyer early on.
On what grounds can the High Court overrule an official decision?
The grounds on which a High Court judge can overturn the decision of a government decision-maker include, among others:
- that the decision-maker was mistaken about the facts or about the law
- that the decision-maker took into account irrelevant factors, or ignored some relevant factors
- that the decision was made for an improper purpose
- that the decision-maker didn’t follow the rules of natural justice – for example, they were biased against you, or they didn’t give you a chance to put your side of the story, or they changed their policy without publishing the new policy.
What orders can the High Court make?
If the judge agrees with your challenge, they can cancel the decision (sometimes called “quashing” the decision). They can also order the agency or official to take particular action – for example, ordering them to reconsider the issue and make a fresh decision.
It may be that no final decision has yet been made and you’ve gone to court in advance, to prevent it happening. In these cases, the judge has the power to prohibit the agency or official from taking the decision or action you’re opposed to (“prohibition” or “injunction”).
The judge can also make an order declaring what your legal rights are in the situation (“declaration”).
Disadvantages of judicial review
Judicial review is an important tool that citizens can use to make sure the government and other public bodies don’t step outside their legal powers when dealing with you. However, for a number of reasons it often may not be a practical option for challenging decisions:
- Expensive – taking a case to the High Court is expensive, as you’ll need to have a lawyer. You may qualify for Legal Aid, but usually you’ll have to pay this back.
- Slow – it may take many months before the High Court hears your case and gives a decision.
- Narrow scope – the judge won’t be able to change the decision just because they would have made a different decision if it had been up to them originally. Even if the judge does cancel the original decision, they might decide to send the issue back to the original decision-maker for them to make a fresh decision – the decision-maker could then just make the same decision after correcting any problems with their process that the judge identified.
