2. Scope of talk
• the role of judicial review in the equality
context;
• the lessons of judicial review
• the ‘nuts and bolts’ of judicial review;
• responding to threats of judicial review;
• recent changes and future
developments
3. role of JR in the equality context
mechanism for enforcement of
• the PSED
• other public law challenges to decision-
making
– domestic
– EU
– Human Rights Act/ ECHR
4. the lessons of judicial review
• grounds of challenge
– procedural fairness
• duty(ish) to give reasons – ex p Doody – sunlight
is the best disinfectant
• consultation - ex p Gunning
(1) ‘the consultation must be at a time when proposals are
still at a formative stage’; (2) ‘the proposer must give
sufficient reasons for any proposal to permit of intelligent
consideration and response’”; (3) ‘adequate time must be
given for consideration and response’; (4) ‘the product of
consultation must be conscientiously taken into account in
finalising any statutory proposals’.
5. the lessons of judicial review
• grounds of challenge
– legality including compliance with ECHR/ EU
law
– Rationality
6. the lessons of judicial review
• grounds of challenge
– legality including compliance with the ECHR/
EU law/ PSED
• mainstreaming equality analysis
• avoiding unlawful discrimination (Elias v MOD)
• taking into account all relevant considerations and
ignoring irrelevant considerations
– rationality
7. ‘nuts and bolts’ of JR
• claimants
–standing
–funding
• procedure
–Pre-action Protocol letter/ Letter before
Action (PAP/ LBA)
–time limits
–permission stage
• post-permission stage
8. responding to threats of JR
•the importance of PAL/ LBA responses to
costs but, more fundamentally, to internal
scrutiny of decision making:
• STOP AND THINK – an early climb
down is not necessarily a defeat
•post-permission stage: THINK AGAIN
9. recent changes, future developments
• legal aid
– residence test
– permission stage
• likely outcomes
– reduction in number of challenges
– significant reduction in the quality of challenges?
– relative increase in challenges from organisations rather
than (legally aided) individuals?
– complacency?
10. future developments
• review of the PSED by the Independent Steering
Group
– specific threat to the role of JR in the enforcement of the
PSED – though not for now
• Criminal Justice and Courts Bill – proposed
changes to Judicial Review
– standing
– refusal of permission if ‘highly likely that the outcome for
the applicant would not have been substantially different’
– intervenors to be liable for costs
– costs capping changes
