Below is the legalese on using the Judicial Review
Post# of 56324
Posted On: 03/11/2015 7:06:12 PM
Below is the legalese on using the Judicial Review. Most notable phrase is:
"The judicial review process is not that interested in what the actual decision was, but in how that decision was made. Was the decision made in a lawful way, or not?"
http://www.keepournhspublic.com/pdf/JudicialR...iefing.pdf
Using the law (Judicial Review)
The way that people can challenge decisions by government bodies in the courts, is through judicial review. Often, the key decisions you may need to challenge are made locally, by commissioners (the Clinical Commissioning Groups), who control the budgets and make decisions about what healthcare is provided, and by whom.
The judicial review process is not that interested in what the actual decision was, but in how that decision was made. Was the decision made in a lawful way, or not? Examples of making a decision in an unlawful way could include:•••• Don’t worry – you are not expected to fully understand the law, or how the technicalities of it may have been breached. Instead you should talk to solicitors specialising in public law, at the earliest opportunity, who will be able to advise you further, without commitment (see below).
To win a judicial review you need to show two things:
• That a decision has been (or is about to be) made unlawfully, as outlined above• That someone has suffered ‘detriment’ as a result – this could be an individual, or acompany or organisation.
To take a judicial review, you therefore need someone (a ‘claimant’) who has suffered. If you are using the law to prevent changes to a service, it will need to be someone who uses that service and is therefore sufficiently affected (in legal terms, they have sufficient ‘standing’ to take a case).Failing to take required procedural steps. For example, sometimes public bodies have toconsult on a pending decision before they make it, particularly where the change is asignificant one. Where that is the case, a failure to consult might cause a court to decide thatthe decision was taken in an unlawful way.Failure to consider all viable options (for example, options that would keep services withinthe NHS, without necessarily tendering). Courts will often find that a public body making adecision has a duty to at least consider all potential solutions. A decision-maker whounreasonably fetters his discretion, perhaps by confusing policy with law, may be found tobe acting unlawfully.
Taking into consideration irrelevant factors. Most public bodies have a defined role. Takinginto account factors outside that role and irrelevant to the decision at hand could lead to anunlawful decision. For instance, a body charged with improving public health might well befound to have acted unlawfully if it made a decision based on the impact on public morals.Failing to take into consideration all relevant factors. This is the converse of the previousground of challenge. It can be a difficult area.Making a decision that is so unreasonable that no reasonable decision maker could havemade it. This can be very hard indeed to establish: courts will only strike down a decision onthis ground when it is very clearly wrong.
"The judicial review process is not that interested in what the actual decision was, but in how that decision was made. Was the decision made in a lawful way, or not?"
http://www.keepournhspublic.com/pdf/JudicialR...iefing.pdf
Using the law (Judicial Review)
The way that people can challenge decisions by government bodies in the courts, is through judicial review. Often, the key decisions you may need to challenge are made locally, by commissioners (the Clinical Commissioning Groups), who control the budgets and make decisions about what healthcare is provided, and by whom.
The judicial review process is not that interested in what the actual decision was, but in how that decision was made. Was the decision made in a lawful way, or not? Examples of making a decision in an unlawful way could include:•••• Don’t worry – you are not expected to fully understand the law, or how the technicalities of it may have been breached. Instead you should talk to solicitors specialising in public law, at the earliest opportunity, who will be able to advise you further, without commitment (see below).
To win a judicial review you need to show two things:
• That a decision has been (or is about to be) made unlawfully, as outlined above• That someone has suffered ‘detriment’ as a result – this could be an individual, or acompany or organisation.
To take a judicial review, you therefore need someone (a ‘claimant’) who has suffered. If you are using the law to prevent changes to a service, it will need to be someone who uses that service and is therefore sufficiently affected (in legal terms, they have sufficient ‘standing’ to take a case).Failing to take required procedural steps. For example, sometimes public bodies have toconsult on a pending decision before they make it, particularly where the change is asignificant one. Where that is the case, a failure to consult might cause a court to decide thatthe decision was taken in an unlawful way.Failure to consider all viable options (for example, options that would keep services withinthe NHS, without necessarily tendering). Courts will often find that a public body making adecision has a duty to at least consider all potential solutions. A decision-maker whounreasonably fetters his discretion, perhaps by confusing policy with law, may be found tobe acting unlawfully.
Taking into consideration irrelevant factors. Most public bodies have a defined role. Takinginto account factors outside that role and irrelevant to the decision at hand could lead to anunlawful decision. For instance, a body charged with improving public health might well befound to have acted unlawfully if it made a decision based on the impact on public morals.Failing to take into consideration all relevant factors. This is the converse of the previousground of challenge. It can be a difficult area.Making a decision that is so unreasonable that no reasonable decision maker could havemade it. This can be very hard indeed to establish: courts will only strike down a decision onthis ground when it is very clearly wrong.
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