February 2017 – Judicial Review
We talk a lot about how the decisions I make as the Service Complaints Ombudsman are binding and can only be challenged by Judicial Review, but what does that mean? In this blog I will be looking at why the legislation requires my decisions to be binding and what Judicial Review is all about.
When an individual makes an application to my office asking that I use one of my specific powers of investigation it is because they believe that something has gone wrong in the internal Service complaints process. As the Service Complaints Ombudsman I effectively provide the “checks and balances” against that process and am the final arbiter in those areas which I have been empowered to investigate.
Once an application is received by my investigations team, every decision that is made from that point on is binding. That includes decisions that the application cannot be accepted for investigation and decisions that are made following an investigation. This is what is set out in the legislation that established my office.
Because those decisions are binding, the only way to challenge them is through Judicial Review, there is no mechanism for appeal. An appeal would involve another individual or body looking at the decision made and making a finding as to whether or not it was the right decision. However as I hold the highest position in my office and all of the decisions are either made by me or under my delegated authority, there is no one that can do this internally. A mechanism that would allow an external body to review my decision would simply extend the process, and with all processes there must be a point at which it ends. However there must also be room for people to challenge the validity of a decision and that is where Judicial Review comes in.
So what is Judicial Review?
Judicial Review is a legal process where the High Court reviews a decision made by a public body. When the court reviews the decision what they are doing is looking at whether the decision was lawful. That is, did the public body have the power to make that decision and was the proper process followed? It is not an appeal – the court won’t reinvestigate a complaint and give a new decision, it is purely concerned with the lawfulness of the decision made.
As a public body it is only right that the decisions made by my office are open to this type of scrutiny.
We work very hard to ensure that our processes are of the highest standard, that they are in line with the legislation that sets out my role and powers, and that they are reviewed whenever a potential issue is identified. However we are a young organisation and we are learning. Not a week goes by when we don’t see an issue we haven’t dealt with before or where questions are raised about how far my powers stretch. Although a lot of the work that we do has become routine in terms of the application of the law and our processes, when the exceptions arise they are never straight forward! We take every care and effort to try and get it right – but if someone feels that we were wrong, they have the legal right to bring that challenge.
In our first year of operation three individuals started the process of Judicial Review in relation to decisions made by my office. None were given permission to continue as the court could find no indication that the decisions were unlawful. This reaffirms the work that we have done and continue to do in making sure our work is of the highest standard. However, we are committed to continuous improvement. While I, like any other office holder, would hope that a Judicial Review never went against us I recognise that it might and if an error in our process is ever found we will always take steps to rectify it immediately.
N.B – If someone chooses to pursue a Judicial Review of one of our decisions they should consider seeking legal advice about what the process entails and how much it is likely to cost. My office cannot give advice on those issues. There is a factsheet on Judicial Review that is available on our website which provides some basic information including the details of our solicitors.