LEARNING FROM JUDICIAL REVIEW
26 June 2014
Aileen McColgan
Scope of talk
• the role of judicial review in the equality
context;
• the lessons of judicial review
• the ‘nuts and bolt...
role of JR in the equality context
mechanism for enforcement of
• the PSED
• other public law challenges to decision-
maki...
the lessons of judicial review
• grounds of challenge
– procedural fairness
• duty(ish) to give reasons – ex p Doody – sun...
the lessons of judicial review
• grounds of challenge
– legality including compliance with ECHR/ EU
law
– Rationality
the lessons of judicial review
• grounds of challenge
– legality including compliance with the ECHR/
EU law/ PSED
• mainst...
‘nuts and bolts’ of JR
• claimants
–standing
–funding
• procedure
–Pre-action Protocol letter/ Letter before
Action (PAP/ ...
responding to threats of JR
•the importance of PAL/ LBA responses to
costs but, more fundamentally, to internal
scrutiny o...
recent changes, future developments
• legal aid
– residence test
– permission stage
• likely outcomes
– reduction in numbe...
future developments
• review of the PSED by the Independent Steering
Group
– specific threat to the role of JR in the enfo...
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Judicial Reviews learning and the future

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Judicial Reviews learning and the future

  1. 1. LEARNING FROM JUDICIAL REVIEW 26 June 2014 Aileen McColgan
  2. 2. Scope of talk • the role of judicial review in the equality context; • the lessons of judicial review • the ‘nuts and bolts’ of judicial review; • responding to threats of judicial review; • recent changes and future developments
  3. 3. role of JR in the equality context mechanism for enforcement of • the PSED • other public law challenges to decision- making – domestic – EU – Human Rights Act/ ECHR
  4. 4. the lessons of judicial review • grounds of challenge – procedural fairness • duty(ish) to give reasons – ex p Doody – sunlight is the best disinfectant • consultation - ex p Gunning (1) ‘the consultation must be at a time when proposals are still at a formative stage’; (2) ‘the proposer must give sufficient reasons for any proposal to permit of intelligent consideration and response’”; (3) ‘adequate time must be given for consideration and response’; (4) ‘the product of consultation must be conscientiously taken into account in finalising any statutory proposals’.
  5. 5. the lessons of judicial review • grounds of challenge – legality including compliance with ECHR/ EU law – Rationality
  6. 6. the lessons of judicial review • grounds of challenge – legality including compliance with the ECHR/ EU law/ PSED • mainstreaming equality analysis • avoiding unlawful discrimination (Elias v MOD) • taking into account all relevant considerations and ignoring irrelevant considerations – rationality
  7. 7. ‘nuts and bolts’ of JR • claimants –standing –funding • procedure –Pre-action Protocol letter/ Letter before Action (PAP/ LBA) –time limits –permission stage • post-permission stage
  8. 8. responding to threats of JR •the importance of PAL/ LBA responses to costs but, more fundamentally, to internal scrutiny of decision making: • STOP AND THINK – an early climb down is not necessarily a defeat •post-permission stage: THINK AGAIN
  9. 9. recent changes, future developments • legal aid – residence test – permission stage • likely outcomes – reduction in number of challenges – significant reduction in the quality of challenges? – relative increase in challenges from organisations rather than (legally aided) individuals? – complacency?
  10. 10. future developments • review of the PSED by the Independent Steering Group – specific threat to the role of JR in the enforcement of the PSED – though not for now • Criminal Justice and Courts Bill – proposed changes to Judicial Review – standing – refusal of permission if ‘highly likely that the outcome for the applicant would not have been substantially different’ – intervenors to be liable for costs – costs capping changes
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