UK Law and Practice Contributed by: Charles Brasted, Julia Marlow, Andrew Eaton and Fraser Eccles, Hogan Lovells International LLP
1. Jurisdiction 1.1 General Rules or Specific Regimes? The lawfulness of the decisions of bodies exer - cising public functions is principally supervised and enforced through court proceedings called “judicial review” . The availability of judicial review is codified in Section 31 of the Senior Courts Act 1981 (the “SCA 1981” ) and Part 54 of the Civil Procedure Rules (CPR), although it derives from the courts’ long-standing constitutional respon - sibility for upholding the rule of law. Several stat - utes also provide for statutory forms of judicial review in particular contexts. The availability and scope of judicial review is therefore governed by a mixture of statute, court procedures and guid - ance, and the common law. The principal role of judicial review is to ensure that governmental power is not exercised with - out lawful authority conferred by an Act of Parlia - ment, the common law, or (in certain cases) the royal prerogative (see 10.11 Scope of Judicial Review: Merits v Process ). It is usually sought in respect of decisions made by central govern - ment, local authorities and/or other public bodies exercising statutory functions, such as regula - tory authorities. However, it may also be avail - able where private bodies exercise functions of a sufficiently public nature (see 2.1 Determining Susceptibility ). Judicial review is a remedy of last resort, mean - ing that claimants must generally demonstrate that they have exhausted all adequate alterna - tive remedies before applying for judicial review. Statutes governing certain areas of regulation have created alternative dispute resolution pro - cedures or statutory appeal mechanisms, which may displace or restrict the availability of judi - cial review for certain types of decisions. How - ever, the courts’ general supervisory jurisdiction
in respect of judicial review applies wherever another adequate form of legal redress is not available. 1.2 Forum for Judicial Review Applications for judicial review are heard primar - ily by the Administrative Court, a division of the King’s Bench Division of the High Court of Eng - land and Wales, either by one High Court judge, or by a Divisional Court of two or more judges. Certain types of judicial review are heard by the Upper Tribunal – for example, in respect of immi - gration and asylum decisions. Susceptibility to judicial review is determined by reference to the nature of the decision or action challenged, not the status or nature of the deci - sion-making body (although the source of the power exercised can be determinative, such as where the power is conferred by statute). To be susceptible to challenge, the decision or action in question must have “a sufficient public law element, flavour or character to bring it within the purview of public law” (R (Beer) v Hamp - shire Farmers Market Ltd[2004] 1 WLR 233). For example: 2. Target of Challenge 2.1 Determining Susceptibility • Employment decisions by public bodies are rarely susceptible to judicial review (R (Tucker) v Director General of the National Crime Squad [2003] EWCA Civ 57). • The court may refuse to hear a judicial review against a public body where the challenge is, in truth, a commercial dispute (R (Gamesa Energy UK Ltd) v The National Assembly for Wales [2006] EWHC 2167 (Admin)). • By contrast, decisions by public bodies relat - ing to commercial contracts for goods and
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