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Remedies All remedies for judicial review are 'discretionary'. So, even if the claimant wins all the legal arguments at the hearing, there is no guarantee that the decision will be set aside or the public authority's actions declared unlawful. The court may decide that giving a remedy would serve no useful purpose, or would be detrimental to good administration or would prejudice the rights of third parties. The remedies that the court can grant if the claimant is successful are the following: A 'Quashing Order' - (formerly certiorari). The decision of the public body is quashed, it is rendered null and void. The reviewing court does not substitute its own decision for that of the public body. In certain cases for example, where the public authorities decision is set aside on the grounds that it was made using improper procedures, the court may remit the matter back to the authority for it to be re-determined. The authority may, however, then reach the same decision although this time it would be careful to follow the proper procedures. A 'Prohibiting Order' - (formerly prohibition). The public body is prohibited by the court from acting outside its jurisdiction, where it had made a decision it did not have the power to make. A 'Mandatory Order' - (formerly mandamus). The public body is ordered by the court to fulfil a public duty, in a circumstance where the public body has not taken action which it should have done. Appeals Procedure If the Claimant or the Defendant lose the judicial review they have the right to appeal. The appeal would be heard firstly by the Court of Appeal, a further appeal can be made to the House of Lords and that is the final appeal allowed in the UK system. Further appeals can be heard in the European courts under certain circumstances which will be discussed later. An appeal to a higher court has to be on a question of law not fact. The difference between the two is this: the matter of 'fact' is dealt with by the so called court of first instance, whose job is to examine the facts and decide upon the case based solely on the factual circumstances; the question of 'law' is dealt with by the so called appellate court, whose job it is to answer a specific question put to it concerning a legal issue. The appeal can either be referred by the court on a question of law that it needs to have answered before it can decide on the case in hand or by either party. If one party appeals, the other party may cross-appeal on a different point. Leave to appeal has to be granted either by the High Court at the end of the judicial review or by the Court of Appeal and so on to the House of Lords. European Courts There is a distinct difference between appealing to the European Court of Justice (ECJ) and to the European Court of Human Rights (ECtHR). The ECJ deals with appeals concerning the EU Treaty and the ECtHR deals with matters concerning the European Convention on Human Rights and Fundamental Freedoms (ECnHR). The European Court of Justice (ECJ) The ECJ is the final court of appeal and decides on matters concerning interpretation of European Community law under the EU Treaty. The national court considers the factual issues in the case and the ECJ would be referred to only to decide on issues of community law which have not previously been decided on. There is no automatic right of appeal to the ECJ. The European Court of Human Rights (ECtHR) The European Convention on Human Rights and Fundamental Freedoms (ECnHR) operates under the auspices of the Council of Europe. This must be distinguished from the European Community or Union. The Council of Europe is an international treaty organisation of which there are 41 members, the UK being one member state. The member states have to comply with the Convention, if they do not an individual from that member state can complain to the Court of Human Rights regarding their treatment. The ECtHR, which sits in Strasbourg, has since 1998 been renamed the Court of Human Rights. Since the Human Rights Act 1998 has come into force in the United Kingdom, the need to go to the ECtHR has largely been diminished, indeed that was the point. Individuals can now go to the British courts about rights contained in the ECnHR. If there is cause to go to the ECtHR, however, all UK remedies have to be exhausted first. Back to Part 1 |
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