Public authorities in Wales make decisions on a daily basis. Each of those decisions has the potential to have a significant effect on people’s lives. It is therefore imperative that public authorities respect standards of good governance and the principles of the Rule of Law. In other words, all central and devolved government departments, local authorities, courts and tribunals, and all other bodies exercising functions of a public nature, should act within the law, fairly, and respect the principles of accountability, accessibility and transparency. This will help to ensure that the public authorities do not act arbitrarily, that all are treated equal in the eyes of the law and that fundamental rights are protected. Ultimately, this will lead to the making of good decisions that are capable of withstanding scrutiny and any legal challenge.
This guidance assists public authorities in Wales to make good decisions that are lawful and comply with the Rule of Law. It does so by describing in clear and accessible terms the main grounds on which a public authority’s actions may be challenged through the judicial review procedure. It also includes a number of case studies and practical tips that give public authorities in Wales insight into good decision-making.
An application for judicial review is an application to the High Court for it to review the lawfulness of an enactment or a decision, action or failure to act in relation to a ‘public function’. For the application to proceed to the hearing stage, the person making the application (the “claimant”), must have sufficient interest in the matter, and the application must be made promptly and in any event within three months.
The application is made on one or more grounds of review. These grounds have either been developed by the courts (‘the common law’ grounds of review) or are set out in legislation. The main common law grounds of review are set out in the table in the full PDF of the document. For ease of use, the grounds have been categorised. However, the boundaries between the categories, and the grounds themselves, are quite fluid. In many cases, a claimant will seek to rely on a combination of overlapping grounds. A reference in the table to ‘CPR’ is to the Civil Procedure Rules 1998 (SI 1998/3132).
The guidance is not intended to be regarded as definitive advice on defending judicial review actions, for which specialist legal advice should be sought.