Definition
Judicial review is the power of the courts to annul the acts of the executive and/or the legislative power where it finds them incompatible with a higher norm.England and Wales
Judicial review is a procedure in English administrative law by which English courts supervise the exercise of public power. A person who feels that an exercise of such power by, say, a government minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated their rights, may apply to the Administrative Court a division of the High Court for judicial review of the decision. If the application for judicial review is successful, the Court may set aside the unlawful act. In certain limited circumstances, the claimant may be able to obtain damages. A court may also make a mandatory or prohibitory order or an injunction to compel the authority to act lawfully or to stop it from acting unlawfully.
English law does not recognize judicial review of primary legislation (Statutes) unless it is contrary to EU law. Although the Courts can review primary legislation to determine its compatibility with the Human Rights Act 1998, they have no power to quash or suspend the operation of an enactment which is found to be incompatible with the European Convention of Human Rights. They can merely declare that they have found the enactment to be incompatible.
Scotland
The power of judicial review of all actions of administrative bodies in Scotland (including the Scottish Parliament is held by the Court of Session. The procedure is governed by Chapter 58 of the Rules of Court. There are no time limits on seeking judicial review, although if proper administration is prejudiced by delay on the part of the pursuer, the court may exercise its discretion and refuse to grant a review.
Despite the procedural differences, the substantive laws regarding the grounds of judicial review in Scotland are the same as in England and Wales, with decisions in one jurisdiction regarded as highly persuasive in the other. There is, however, one substantial difference in Scotland since there is no distinction between review of a public body and a private body, which is different from in England, where review is only possible in the case of a public body or a quasi-public body. Generally, it is confined to purely procedural grounds (the official action was illegal or improper), although the court will also sanction decisions which are, in substance, so unreasonable that no reasonable decision-maker could have reached it (so-called Wednesbury unreasonableness). A more rigorous standard of substantive review is applied where the matter complained of touches upon the pursuer's rights in terms of the Human Rights Act 1998.
Warning
Do not even consider a Judicial Review because a Public Service or Local Government Ombudsman will not investigate your complaint. They have a statutory discretion whether to investigate your complaint or not, therefore, if they refuse to investigate your complaint they are neither doing anything unlawful nor anything you could successfully challenge by way of a judicial review. In any event even if you managed to persuade an Ombudsman to investigate your complaint and find the public authority guilty of maladministration a public authority can ignore an Ombudsman with impunity. Better to focus on the public authority in question and if necessary seek a judicial review of their decisions. Don't waste time with a waste of space Ombudsman.
