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This article focuses on the process of judicial review: what it means, how it works and why it is important in a democratic system. We recommend you read our article on the separation of powers to help with some of the terms in this article.

Judicial review is a process where the courts are asked to look at the decision-making processes, actions or decisions taken by public authorities and officials and whether they were legal or not. It is a review of the way in which a decision was made, rather than a consideration of whether that decision was necessarily the ‘right’ or ‘wrong’ one.

Judicial review enables the courts to supervise bodies ‘exercising public functions’, typically these are public bodies: such as government departments, local councils, the police, health services, regulators, and even the courts. But it can also include private bodies delivering public services: such as companies hired to manage prisons.

The types of organisation that can be subject to judicial review varies as the meaning of a ‘public function’ is interpreted flexibly. The courts make a decision each time as to whether a decision that is being challenged should be granted permission for judicial review based on a range of factors. The court will first consider whether the decision or activity being challenged is ‘public’, by asking whether or not it serves or benefits the wider public. They will look at the source of the organisations’ powers to determine whether they come from Parliament or not. Amongst other factors, courts will also consider whether the party bringing the case could make an alternative claim other than judicial review.

The Purpose of Judicial Review

At its core - judicial review is about holding to account those organisations who have been granted special powers and privileges to perform public services. Examples include powers of policing, regulation, or government. Since the exercise of these powers often impacts people’s everyday rights, it is especially important that public bodies and officials only use them when and where they have the legal authority to do so.

Judicial review can is an important check and balance on power. This is made possible by the Separation of Powers between the Executive, Legislature, and the Judiciary. Judicial review makes sure that the Executive does things and makes decisions within its powers while following the rules of the law.

The three powers: The Crown (and Government); Parliament and the Judiciary (the courts)

For example, a judicial review can be brought to challenge the activities of a government minister. In this example, the court will assess whether the minister has acted within the scope of powers delegated to them by Parliament. If the court identifies an abuse of power, they can overturn or modify any laws made by that minister so that it follows the existing laws that have already been passed by Parliament.

Judicial review can be considered fundamental to UK democracy for being the only type of hearing where the Rule of Law is at the centre of the process to scrutinise the decisions or behaviour of the Executive. Judicial Review regulates the relationship between the individual and the state in a way that is fair and free from the influence of the Executive.

So, on what grounds can a Judicial Review be brought?

Illegality: This is where a decision-maker misapplies the law, exercises powers wrongly, or exercises powers that it does not have. The principle here is that if an organisation does not follow the law correctly, any following decision or act will be unlawful.
Irrationality: The courts can quash an irrational decision if it “is so unreasonable that no reasonable authority could ever have come to it’” This can be difficult to prove in practice, although it is often argued in relation to EU and Human Rights Law
Procedural Unfairness: This is where an organisation has failed to observe legal procedures, or, came to be influenced by bias.
Breach of Legitimate Expectation: This where a public body has promised to act in a certain way but fails to do so against the expectation of an individual.

A common reason for judicial review is to challenge the actions of public bodies as ‘illegal’ because they are incompatible with the Human Rights Act 1998. This is a clear example of where judicial review can directly protect the rights of citizens when public bodies act illegally.

Importantly, anybody seeking judicial review must have sufficient interest or ‘standing’ in the matter. This means that you must demonstrate that you are affected by the decision or the behaviour of the public body. Usually, pressure groups and charities (such as Greenpeace or Amnesty International) are treated as satisfying this test.

What are the possible outcomes of a successful judicial review?

The court’s ability to choose what to award a successful party is one of the greatest strengths of judicial review. One or more of six forms of relief are available:

A declaration (of the parties’ legal rights)
An order quashing the decision being challenged
An order requiring the body being challenged to carry out its legal duties
An order restraining the body under review from acting beyond its powers
A stay or injunction (preventing court proceedings or action being taken)
Damages (financial remuneration)

The Future of Judicial Review

It is an exciting time to be reading about judicial review. Recently, two high-profile judicial review cases ignited discussion about the powers of the Judiciary to scrutinise the Executive: R (Miller) v Secretary of State for Exiting the European Union [2017] and R (Miller) v Prime Minister [2019]. Following this, a report entitled ‘The Independent Review of Administrative Law’ was commissioned to assess whether the correct balance is being struck between citizen’s rights and effective governance.

The democratic relevance of judicial review to the Separation of Powers and the Rule of Law may now, more than ever before, be decisive in some of the most important decisions being made in society today.

Written By Angus Thomas

Glossary box

Separation of Powers - The division of the state between the Executive (Government), Legislature (Parliament), and the Judiciary (the Courts). [See Leducate’s article]

Delegated - In this context, powers given by parliament to ministers to carry out their role in government effectively - i.e. Home Secretary

The Rule of Law - The idea everybody is subject to and accountable to law that is fairly applied, clear, accessible and enforced.

Quash - Reject the decision because they do not believe it is valid

Human Rights Act 1998 - An Act of Parliament that sets out the fundamental rights and freedoms of UK citizens.

Leducate Explains: What is Judicial Review?