Last week, Tes reported that the Federation of Awarding Bodies (FAB) has sent a letter before action to the Department for Education and the Institute of Apprenticeships as the first step towards initiating judicial review proceedings in connection with the implementation of T levels.

This is clearly a significant step, which reflects the widespread disquiet that has accompanied the introduction of the new qualifications. The proposed defendants will have up to 14 days to respond, and it may of course be that some resolution is possible that stage (although the initial public reaction from the secretary of state has not been encouraging in this regard). However, on the assumption that this is not achieved, it is important to understand what the next steps could be, starting with the parameters within which a court will intervene and the limits of the action it may take.

What is a judicial review?

Judicial review is a process whereby a court considers the lawfulness or otherwise of the decisions, acts and omissions of a public body. It is not a process for determining whether the public body has made the right decision, and the court will not normally substitute its own decision for that of the original decision maker.

The grounds on which a court might intervene include:

• Procedural irregularity or unfairness, either because the decision-maker has failed to follow its stated procedures, or because the procedures themselves were flawed and unfair.
• Error of law, for example exceeding statutory powers, or failure to take into account all relevant considerations or taking into account irrelevant considerations.
• Irrationality, where the decision is one that is so unreasonable that no decision-maker properly directing itself on the material before it could possibly have arrived at that decision.
• Breach of rights under the European Convention on Human Rights.

If the claim is successful, then the most likely order is that the decision complained of is quashed and the decision-maker must take it again, avoiding whatever problems the court decided rendered the original decision unlawful. Judicial review can thus be a pyrrhic victory.

Challenging timescale

Proceedings are expected to be commenced promptly and, in any event, within three months of the decision, act or omission complained of. This can sometimes prove challenging, where, for example, there have been a series of decisions over a protracted period of time, where the challenge really relates to the consequences of one of the earliest decisions. Otherwise ostensibly meritorious claims may be struck out if there is no good reason for the delay.

Commencement of proceedings does not of itself mean that the decision-maker must stop implementing the decision under challenge, although occasionally this is done as a sensible, pragmatic step to avoid unnecessary costs and resources being expended on a decision that might be reversed. The court can be asked to make an “interim order” restraining further implementation, or alternatively, be asked to expedite the proceedings.

By comparison with other types of court action, judicial review is relatively quick anyway but, where the urgency requires, they can be concluded in a matter of days or weeks. However, in the absence of a specific order for expedition, the process will normally take several months.

The process has two stages. The first is the application for permission, which is designed to prevent claims that are vexatious, frivolous or hopeless from proceeding. The test is whether there is an arguable case that justifies an investigation of the substantive merits. Usually, an application for permission is dealt with on the papers, but if it is refused then the claimant can ask for it to be reconsidered at a hearing.

'Duty of candour'

If permission is granted, the matter proceeds to a full consideration. The parties will have to produce witness evidence, supported by contemporaneous documents, but normally witnesses are not required to give oral evidence. The court will consider the matter at a hearing, and make its decision accordingly.

Two other aspects of judicial review that may be relevant include:

1. That the decision-maker is under a broad duty of candour, which means that its objective is not to win litigation at all costs but rather to assist the court in reaching the correct result and thus improving the standards of public administration. The Department will no doubt be hoping this duty does not require it to be quite as candid as the skills minister was when she appeared to implicitly acknowledge that implementation was rushed by suggesting she would tell her own kids to "leave it a year" before starting T levels.
2. That the process allows other “interested parties” to be joined to the claim.  Interested parties are those who have a legitimate interest in the matters under scrutiny, and in a case such as this, which has such profound ramifications and is of such wide public interest, there could be many such parties.

The FAB’s threat of legal action could lead to a period of uncertainty for the future of T levels, which will affect a wide number of stakeholders. If it succeeds, however, the result may be a more measured implementation of this significant change to the qualifications landscape, which may ultimately lead to a better and more enduring system for learners, providers and awarding bodies alike.

Smita Jamdar is partner and head of education at Shakespeare Martineau