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 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.

JUDICIAL REVIEW

WHAT IS JUDICIAL REVIEW?

Judicial review is a type of legal challenge that you can bring against a public authority, asking a judge to examine the lawfulness of their decision, action or inaction. This will involve the judge looking at the way the decision was made, not the decision itself.

WHO CAN USE JUDICIAL REVIEW?

To bring a judicial review, you must demonstrate a ‘sufficient interest‘ in the decision, action or inaction. 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.

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 (see below) while you explore these other ways.

• Time Limit

It is necessary to bring a judicial review “promptly and in any event not 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 six 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 provide guidance on the strength of your case (see below).

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 – a decision, action or inaction was so unreasonable that no reasonable person acting reasonably could have made it. Note that this can be a very difficult reason to demonstrate.

• Illegality – a decision, action or inaction was beyond the powers available to the public authority (this is called ‘ultra vires’), or contrary to the Human Rights Act.

• Procedural Unfairness – a decision, action or inaction was taken improperly (e.g. without a fair hearing or proper consultation, with bias, or against your legitimate expectations).

WHAT ARE THE POSSIBLE OUTCOMES?

If your judicial review is successful, a judge may decide (at their discretion) to grant a range of remedies, including:

• Quashing Order – overturning an unlawful decision and requiring a 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 – clearly stating what the law is.

• Declaration of Incompatibility – see Human Rights Act below.

• Mandatory Order – requiring a public authority to do something.

• Prohibiting Order – preventing a public authority from taking an unlawful decision or action it has not yet taken.

• Injunction – preventing an unlawful act or requiring a public authority to do something, at an early stage.

• Damages – providing compensation, particularly where a public authority has violated your rights. Courts will only award these in certain, limited circumstances.

Further information and guidance on judicial review is available here.

HUMAN RIGHTS ACT

WHAT IS THE HUMAN RIGHTS ACT?

The Human Rights Act makes it possible for 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;
• allowing you to bring a claim in UK courts when your rights are violated by a public authority; and
• requiring judges to interpret and apply other laws in a way that is compatible with your rights.

WHO CAN USE THE HUMAN RIGHTS ACT?

Any person present in the territory of the United Kingdom, regardless of whether or not they are a British citizen or a foreign national, a child or an adult, a prisoner or a member of the public, can use the Human Rights Act to defend their rights. In exceptional cases, people outside the territory of the United Kingdom can use the Human Rights Act if they are considered to be within the UK’s ‘jurisdiction’ – i.e. where the UK has ‘effective control’ over the territory or otherwise exercises power and authority over you – for example on a British Armed Forces base abroad.

However, to be able to bring a claim, you must have been – or would be – a ‘victim‘ of an alleged violation(s) by a public authority. This means you must have been – or would be – directly affected by the alleged violation.

You can:

• bring a free-standing civil HRA 1998 claim when your rights have been violated;
• use the HRA 1998 as the basis for ‘illegality’ grounds in a judicial review; or
• otherwise rely on the HRA 1998 in “any legal proceedings” (e.g. as part of your defence if prosecuted for a criminal offence).

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, including registering a formal complaint with the public authority and, if necessary, complaining to the relevant supervisory body (e.g. Independent Office for Police Conduct – see Liberty’s guidance on making a police complaint here). 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 normally bring a claim under the Human Rights Act within one year of the alleged violation, unless the Court decides it is fair for the claim to be brought later than this.

WHAT RIGHTS DO I HAVE?

You can bring a claim under the Human Rights Act in relation to any action or inaction by a public authority that violates your rights.

Some of your rights under the Human Rights Act are ‘absolute’ and a public authority must not breach them under any circumstances (e.g. the right not to be tortured or subjected to inhuman or degrading treatment under Article 3).

Other rights are ‘qualified’ (e.g. the right to privacy under Article 8 and freedom of expression under Article 10) which means that a public authority may lawfully restrict these rights where it is necessary and proportionate way of achieving one or more particular aims that include national security, public health, and crime prevention.

Your rights may also create positive obligations for public authorities (e.g. the police have a duty to properly investigate reports of sexual violence).

Further information about your rights under the Human Rights Act is available here.

WHAT KIND OF REMEDY CAN I GET?

Courts must interpret the law – including the laws applied to you by any public authority – in a way that is compatible with your rights.

If a court decides that the law is not compatible with your human rights, then it will have different options open to it, depending on whether the law is found within an Act of Parliament (primary legislation) or made by Government Ministers under powers given to them by Parliament (secondary legislation).

Where a court decides that a piece of secondary legislation is compatible with your human rights, then it can strike this law down (unless an Act of Parliament prevents it from doing so).

Where a court decides that an Act of Parliament is incompatible with your human rights it can only declare that the law is not compatible with your rights. It cannot strike the law down. While this declaration of incompatibility will not affect your individual case, because the incompatible law will remain valid, it provides Parliament with an opportunity to change the law to make it compatible and ensure that similar violations are not repeated.

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

For a more detailed explanation of how the Human Rights Act works in practice, see our explainer here.

HOW TO BRING A CLAIM

JUDICIAL REVIEW

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).

THE HUMAN RIGHTS ACT

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 find a lawyer with expertise in human rights law (see below) to assist you with your claim.

LEGAL REPRESENTATION & FUNDING

As noted above, if you are considering bringing a judicial review or a claim under the Human Rights Act, we strongly advise you to get a lawyer to represent you.

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.

Additional sources of free legal advice, as well as further information on how to find a lawyer and fund your case, are available here.

Further Support

If you require more specific advice and guidance on judicial review and the Human Rights Act in relation to a particular matter, you can contact our Advice and Information team here.

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 here.