Miller grinds down Government once again

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25 September, 2019

Yesterday, the Supreme Court ruled that the prorogation of Parliament between the 9th September and the 14th October 2019 was unlawful and therefore was null and had no effect. Effective, it has been ruled that it never happened.

The Supreme Court heard appeals from previous, conflicting rulings from the Scottish Court of Sessions (as brought by a group of 78 parliamentarians) and the High Court (as brought by campaigner Gina Miller) on the matter, with these matters (and another brought in Northern Ireland)

Whilst this development has confounded some and delighted others, the fact that this case exists reminds us that there is a powerful legal mechanism for individuals to seek redress against decisions made by the Government, as have been used here.

What is a judicial review?

A judicial review is the procedure where courts scrutinise decisions made by public bodies to ensure that they act lawfully and fairly. A public body includes a swathe of organisations, from the national Government to local councils. Effectively, they are formally established organisations that are (at least in part) publically funded to deliver a public or government service.

The courts conduct a review of the process a public body has used in order to reach a decision, with the end point being to assess whether the decision was valid and lawful.

It is important to note that judicial reviews are a remedy of last resort. A court may refuse permission to bring a claim if all other legal avenues have not been investigated first.

How can someone bring a claim?

The claimant seeking a judicial review must have sufficient interest in the matter to which the claim relates. This can be an individual affected by the decision in question or even a pressure group seeking to fight a decision for the public good.

Claims can be made where a decision has been made:

  • Illegality such as exercising a power wrongly or acting beyond their power
  • Irrationality a decision is manifestly unreasonable or failed to take into account relevant matters
  • Procedural unfairness - no consultation as required by law, or it is against natural justice such as biased decision making
  • Legitimate expectation - a public body goes against expected conduct as shown by previous conduct or by what they said they would do

Why does this matter?

Although the current case against the Government has drawn the laser-like focus of the national media, local councils and similar organisations need to have a good understanding of how this mechanism can be used against their own decisions, of which they make thousands every year under various statutes such as the Local Government Act 2003.

Each decision has the potential to impact on various individuals or groups and therefore it is important that both the decision making process itself is lawful and that organisations are aware of how these can be challenged.

For more information contact Bethany Paliga in our Governance, Procurement & Information department via email or phone on 01254 222347. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

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