Judicial Reviews   learning and the future
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Judicial Reviews learning and the future

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Judicial Reviews   learning and the future Judicial Reviews learning and the future Presentation Transcript

  • 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 bolts’ of judicial review; • responding to threats of judicial review; • recent changes and future developments
  • 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 View slide
  • 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’. View slide
  • 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 • mainstreaming equality analysis • avoiding unlawful discrimination (Elias v MOD) • taking into account all relevant considerations and ignoring irrelevant considerations – rationality
  • ‘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
  • 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
  • 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?
  • 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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