How to stand up to power: Judicial Review & the Human Rights Act

Disclaimer: this article is for general information. It’s not intended to be used as legal advice. For information on how to get legal advice, please see our page here.

If you think a public authority has acted unlawfully or violated your rights, you may be able to challenge their decisions, actions, or inaction.

You can only use the Human Rights Act and judicial review to challenge the decisions, actions or inaction of ‘public authorities’.

Public authorities include:

• Courts and tribunals
• Government ministers or departments
• Local councils
• Police
• Prisons managers and staff
• NHS trusts
• Statutory bodies (that derive their authority from legislation) such as the Information Commissioner’s Office, the National Crime Agency and the Legal Aid Agency.

Note also that some private bodies that are performing a ‘public function’ will be regarded as a ‘public authority’, including:

• Privately-run prisons or immigration removal centres
• Privately-run care homes receiving money from the local authority.

Public authorities do not include:

• Parliament and anyone exercising functions in connected with it (like MPs and members of the House of Lords)
• A private company not exercising public functions (receiving no public funding and under no statutory obligation to perform its functions).

You can do this by using these two crucial tools:

• Judicial Review
• The Human Rights Act

Below we provide information on what these tools are and when you can use them.

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Judicial review

What is judicial review?

Judicial review is a type of legal challenge that you can bring against a public authority. It’s where you ask a judge to look at the lawfulness of their decision, action or inaction. The judge looks at the way the decision was made, not the decision itself.

Who can use judicial review?  Having sufficient interest

To bring a judicial review, you must show you have ‘sufficient interest’ in what the public authority has done (or hasn’t done). Normally this means you can challenge something that personally affects you or your community.

An organisation may also be able to bring a judicial review in relation to a decision, action or inaction that has wider public importance.

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When can I use judicial review?

• Last Resort: You should only use judicial review after you have explored other ways of resolving the issue, including any available appeals and complaints procedures.  However, make sure you don’t miss the time limit in the meantime.
• Time Limit: You must bring a judicial review as soon as you can, and no later than 3 months of the decision, action or inaction you want to challenge. Some types of judicial review must be brought sooner (e.g. within 6 weeks for planning decisions). The court may still reject your application for judicial review even if brought within 3 months, if it could have been brought sooner.
• Permission: You must apply for permission from the Court to bring a judicial review before it can be fully considered. A lawyer will be able to tell you how strong your case is (see below for information on how to get a lawyer).

Reasons for using judicial review

You can use judicial review to challenge the lawfulness of a decision, action or inaction for various reasons, including:

• Irrationality: the public authority did something (or failed to do something) that was so unreasonable that no reasonable person acting reasonably could have made it. This can be hard to show in practice.
• Illegality:  the public authority did something that was beyond the powers available to it (this is called ‘ultra vires’), or did something against the Human Rights Act.
• Procedural Unfairness: the public authority did something (or failed to do something) in an improper way. This includes without a fair hearing or proper consultation, with bias, or against something you could have legitimately expected them to do.

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What are the possible outcomes of a judicial review?

If your judicial review is successful, a judge may decide (they can choose) to grant a range of remedies, including:

• Quashing Order: the judge overturns the unlawful decision and makes the public authority to take the decision again in a way that is lawful. Note that this may result in a public authority reaching the same decision.
• Declaration: the judge clearly states what the law is.
• Declaration of Incompatibility: the judge states that what the public authority did (or didn’t do) was against the Human Rights Act – see more information on this below.
• Mandatory Order: the judge requires the public authority to do something.
• Prohibiting Order: the judge prevents the public authority from taking an unlawful decision or action it is about to do, but hasn’t yet.
• Injunction: preventing the public authority from doing something unlawful, or requiring the public authority to do something, at an early stage.
• Damages: requiring the public authority to give compensation, particularly where a public authority has violated your rights. This is rare – the judge will only award these in certain, limited circumstances.

The Public Law Project has more information and guidance on their website.

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How to bring a judicial review claim

To bring a judicial review, you need to fill in a judicial review claim form (‘N461’).

You then need to file the form (send by post or bring it in person) at the relevant court building.

Because judicial review is a complex type of legal claim and some sections of the form require detailed legal knowledge, we strongly advise that you find a lawyer with expertise in public law (see below).

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Human Rights Act

What is the Human Rights Act?

The Human Rights Act 1998 allows you to enforce your rights under the European Convention on Human Rights (ECHR) in the UK, by:

• requiring public authorities to act in a way that respects your rights (section 6)
• allowing you to bring a claim in UK courts when your rights are violated by a public authority (section 7)
• requiring judges to interpret and apply other laws in a way that is compatible with your rights (section 3).

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Using the Human Rights Act

Who can use the Human Rights Act?

• People in the UK: Anyone on UK territory can use the Human Rights Act. It doesn’t matter if you’re a child or an adult, if you’re a British national or not, or if you are in prison or not.
• People outside the UK: In rare cases, you can use the Human Rights Act if you are outside of the but within the UK’s jurisdiction  can use the Human Rights Act. You’re within the UK’s jurisdiction if
  • The UK has ‘effective control’ over the territory you’re on or
  • The UK otherwise exercises power and authority over you – for example on a British Armed Forces base abroad.

Victim status: Anyone bringing a claim you must have been – or would be – a ‘victim’ of an alleged violation by a public authority. This means you must have been – or would be – directly affected by the alleged violation.

Using the Human Rights Act in Court

There are different ways to use the Human Rights Act. You can:

• bring a civil Human Rights Act claim when your rights have been violated;
• use the Human Rights Act in a judicial review, to show that the what the public authority did (or didn’t do) was illegal; or
• rely on the Human Rights Act in any legal case. For example if you’re prosecuted for a criminal offence, you can use the Human Rights Act as part of your defence.

When can I use the Human Rights Act?

• Last Resort: You should only bring a claim under the Human Rights Act once you have used any other available remedies. This includes making a formal complaint to the public authority. It could also include complaining to any supervisory body that oversees that public authority – for the police, this is the Independent Office for Police Conduct.
  Note that you can still argue that your rights under the Human Rights Act have been breached as part of these initial complaints.
• Time Limit: You must bring a claim under the Human Rights Act within 1 year of the alleged violation, unless the Court decides it is fair for the claim to be brought later than this.

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What human rights do I have?

You can bring a claim under the Human Rights Act in relation thing a public authority does (or doesn’t do) that violates your rights.

Absolute rights: These are rights that a public authority must not breach them under any circumstances. This includes Article 3: the right not to be tortured or subjected to inhuman or degrading treatment

Qualified rights: A public authority may lawfully restrict these rights where

• There is a law that allows the restriction
• The restriction is for a legitimate aim, and
• It is necessary and proportionate way of achieving this aim

This includes the right to privacy under Article 8 and freedom of expression under Article 10.

As well as stopping interference with your rights, some rights require a public authority to do something (positive obligation). For example, Article 3 the police have to properly investigate reports of sexual violence.

See our page on the Human Rights Act for more information.

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What kind of remedy can I get?

If a court rules that the law is not compatible with your human rights, there are different options depending on the type of law.

Secondary legislation: these are laws made by Government ministers under powers given to them by parliament. The courts can strike down these laws if

• They are incompatible with your human rights, and
• No Act of Parliament prevents them being struck down

Primary legislation: these are Acts of Parliament that become law when MPs vote on them. These laws can’t be struck down in court, but they can be declared incompatible with human rights. This gives Parliament the chance to change the law to make it compatible. This will avoid similar violations in the future.

The Court may decide to award damages (compensation) for any violations of your rights.

See our page on how the Human Rights Act works in practice for more detailed information.

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Bringing a Human Rights Act claim

To bring a Human Rights Act claim, you need to fill in the standard civil claim form (‘N1’). You then need to file the form at the relevant court building.

At the top of the second page of the form, where it asks “Does, or will, your claim include any issues under the Human Rights Act 1998?”, tick “Yes”.

As with a judicial review, we strongly advise you to get help from a lawyer with expertise in human rights law.

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Legal representation and funding

We strongly advise getting a lawyer if you are thinking about bringing a judicial review or a claim under the Human Rights Act.

Legal aid funding is available for judicial review and Human Rights Act claims. Your lawyer will be able to assess your eligibility and otherwise discuss alternative funding options.

Our page ‘I need a lawyer’ has information on free legal advice, on how to find a lawyer and funding your case.

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More information

If you require more specific advice and guidance on judicial review and the Human Rights Act, you can contact our Advice and Information team.

Help Liberty Stand Up To Power

These crucial tools are under threat from the Government. Help us to protect judicial review and the Human Rights Act by joining our campaign.

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Other pages you might be interested in

• What to do if you’ve been discriminated against
• I need a lawyer