Judicial review - Decisions subject to judicial review

Learning Outcomes

This article explains decisions subject to judicial review, including:

• identifying which bodies and decisions are amenable to judicial review using statutory, prerogative and functional (Datafin) tests, and distinguishing reviewable decisions from private, contractual or purely political acts;
• drawing the boundary between public law and private law, applying procedural exclusivity, and recognising when collateral challenges or alternative civil routes are appropriate;
• applying amenability principles to outsourced and hybrid bodies, tribunals, regulators and delegated legislation, with particular focus on legal effect and justiciability;
• analysing standing, including sufficient interest, representative and pressure-group claimants, the link between standing and merits, and the stricter Human Rights Act “victim” requirement;
• understanding time limits, permission and pre-action requirements, and how alternative statutory remedies, appeal mechanisms and ouster or partial ouster clauses constrain judicial review;
• evaluating which remedies (quashing, prohibiting, mandatory orders, declarations, damages and suspended or prospective quashing orders) are available and appropriate in different procedural contexts;
• working through typical SQE1-style scenarios to spot reviewable acts, identify the correct procedural route, address standing and justiciability, and select proportionate, exam-appropriate remedies.

SQE1 Syllabus

For SQE1, you are required to understand decisions subject to judicial review, including amenability, the public/private law boundary, standing (sufficient interest), and the procedural and constitutional context, with a focus on the following syllabus points:

• The range and types of decisions and acts subject to judicial review, including scope and boundaries of public law versus private law processes.
• The essential distinctions between acts of public law bodies, public/governmental functions, and private law acts or disputes.
• The key criteria for identifying public bodies or those exercising public functions, including the Datafin test, functional approach, and the treatment of hybrid entities or bodies not founded on statute.
• The scope of procedural exclusivity, the boundaries between judicial review and other procedural routes, and recognised exceptions permitting collateral challenge or alternative procedures.
• The legal and factual tests for standing (sufficient interest), including court treatment of pressure groups, associations, public interest claimants, and directly affected parties.
• The constitutional basis of judicial review, with discussion of the rule of law, the courts’ supervisory role, and limits on court review of legislative and political matters.
• The mechanisms by which public authorities are held to account, the limits of court involvement in policy, and differentiation of reviewable and non-reviewable matters.
• Awareness of time limits, permission requirements, and circumstances in which human rights claims or other statutory procedures interact with judicial review.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is subject to judicial review: (a) a decision by a government minister to grant planning permission; (b) a private contract dispute between two companies; (c) a disciplinary decision by a statutory tribunal?
2. What is the test for determining whether a body is amenable to judicial review?
3. Who must have "sufficient interest" to bring a claim for judicial review?
4. Can a pressure group ever have standing to bring a judicial review claim?

Introduction

Judicial review is the principal mechanism by which the courts supervise the legality of decisions, actions, and omissions of public bodies and those exercising public functions within the UK constitutional system. Its core purpose is not to substitute the court’s view on the merits of a decision but to ensure that public authorities act lawfully, within the powers conferred upon them, for proper purposes, and according to fair procedures. The function of judicial review serves as a fundamental check on the exercise of state power, supporting the rule of law and the constitutional architecture of separation of powers.

Key Term: judicial review
The process by which courts supervise the legality (and, in limited cases, the rationality or fairness) of decisions or actions by public authorities or those exercising public functions, ensuring they act within their lawful powers.

Decisions Subject to Judicial Review

What Is a Reviewable Decision

A reviewable decision, for the purposes of judicial review, is one taken by a public body—or a person or body exercising public functions—that has legal consequences. Judicial review does not provide a forum for appeals on the merits of the decision, but for a review of legality, reasonableness, and procedural fairness.

Common features of reviewable decisions include:

• Decisions exercised under statutory or prerogative power by central or local government, statutory agencies, or public officials.
• Decisions by tribunals, regulators, professional disciplinary panels, and other bodies established by law where their actions affect legal rights or interests.
• The exercise of royal prerogative powers with public consequences, such as decisions concerning foreign affairs or the issue of passports, where justiciability is established.
• The making of delegated legislation (statutory instruments, regulations, rules, etc.) under authority conferred by Parliament.

To be amenable, the decision must have legal effect, meaning it alters legal rights, duties, status, or legitimate expectations. Decisions that are advisory only, non-binding guidance, internal policies, or mere statements of intention are generally not reviewable unless and until they are implemented or have tangible legal effects.

The courts assess the reviewability of a decision with reference to the “nature and effect” of the act, focusing on its impact on rights, obligations, or other legally protected interests. Mere preparation or preliminary statements are not usually reviewable, unless there has been a crystallisation into a concrete determination or formal action.

Key Term: reviewable decision
An act, omission, or determination by a public body, official, or private actor exercising a public function that has legal consequences for individuals or groups and is subject to review upon application to the courts.

Types of Acts Commonly Reviewed

• Exercise of statutory powers or duties: This includes decisions on benefits, regulatory consents, appointment and removal from office, and administrative sanctions.
• Exercise of prerogative powers: Public law reviews can extend to prerogative decisions affecting rights or interests (see CCSU v Minister for the Civil Service (the "GCHQ" case)), though some spheres remain non-justiciable (notably high policy; e.g., treaty-making, war powers).
• Making of delegated legislation: Statutory instruments or regulations are subject to judicial review, often on the grounds of ultra vires (exceeding the powers conferred by primary legislation), irrationality, or procedural impropriety.
• Performance of public duties by non-governmental bodies: Private entities may be reviewable if acting as proxies for government or under statutory delegation, such as a private company managing a prison (R v Servite Houses, ex p Goldsmith).

Legal Principles on Reviewability

The courts have made clear that the focus for reviewability is upon the public character and effect of the act. A simple summary is:

• Where the power exercised is rooted in statute or prerogative, and the effects are legal in nature, the act is presumptively reviewable.
• Where a body or decision is not clearly public or lacks legal effect, the courts analyse the source and nature of power, the consequences of the act, and the institutional context.

Practical indicators of amenability

Courts look for public hallmarks: statutory basis, government oversight, monopoly regulation, compulsory membership, coercive effects, and decisions affecting broad classes rather than purely private contractual positions. The closer the decision is to determinations of legal status (e.g., immigration leave), the stronger the case for amenability.

Key Term: public body
Any legal or natural person or entity exercising functions of a governmental or public nature, including those set up by or operating under legislation, or exercising prerogative power in the public interest.

Examples of Reviewable Acts

• Grant or refusal of a licence (e.g., a taxi licence by a local authority).
• Planning decisions by government ministers or local councils.
• Determinations by statutory tribunals or regulators (e.g., immigration tribunals, health and safety authorities).
• Imposition of disciplinary sanctions by professional regulatory panels exercising powers conferred by law.
• The making or application of statutory instruments or local byelaws.
• Refusals to register school pupils, housing allocations, exclusion from prison education services, or termination of parole (where the decision is taken under public law powers and affects rights).

Decisions generally not reviewable

• Purely private contractual decisions by private entities, absent a public law function.
• Internal disciplinary decisions by private clubs operating solely on consensual rules.
• Political judgments without legal consequences (e.g., party whips).
• Parliamentary proceedings protected by privilege (Article 9 Bill of Rights).

Clarifying grey areas with the functional test

Amenability sometimes turns on function rather than form. A self-regulatory body may be reviewable if its rules have public law effects (Datafin), whereas a national sporting regulator may remain outside review if its authority rests only on membership contracts (Aga Khan). Courts weigh practical compulsion, statutory accommodation, and public responsibility.

Public Law vs Private Law

Judicial review is the exclusive remedy for enforcing public law principles. Private law disputes—such as those concerning contract or tort—do not fall within the remit of judicial review and are to be dealt with in ordinary civil proceedings. This distinction is essential, both for identifying the correct procedure and for protecting public authorities from inappropriate challenges.

Key Term: public law
Law that governs the exercise of power by the state and public bodies, and regulates relationships between individuals and public authorities.

Key Term: private law
Law concerning relationships or disputes between individuals and legal entities not exercising public or governmental functions; it includes areas such as contract, tort, and property law.

Determining the boundary

Where a dispute arises from statutory duty, coercive power, or external effects on legal status, it sits in public law. If it arises from consensual arrangements, private choice, and no public element, it sits in private law. Mixed cases require careful analysis of the “public” core and whether a collateral challenge in private proceedings is proper.

Principle of Procedural Exclusivity

As established in O’Reilly v Mackman, claims to vindicate public law rights must ordinarily be brought by judicial review and not by ordinary civil action. This ensures the protections found in judicial review (e.g., time limits, permission requirement) are not circumvented, and guards against unmeritorious or stale claims. However, there are exceptions:

• Where a case raises both public law and private law issues, and the private law claim dominates, or where a public law issue arises only collaterally in private law proceedings (the “collateral challenge” doctrine), the courts may permit the claim to proceed outside the judicial review procedure (e.g., Wandsworth LBC v Winder).
• Challenges may be raised defensively—e.g., a defendant accused of breach of contract can argue by way of defence that a public authority’s act was ultra vires or unlawful.
• Where statute provides for a specific, adequate statutory remedy (such as an internal appeal process), judicial review is likely to be constrained by the requirement to exhaust that procedure first.

Failures to observe the rule of procedural exclusivity may be excused in certain contexts, especially where access to justice or fairness would be prejudiced by a technical bar.

Collateral challenge and statutory regimes

Collateral challenges arise most often where statutory schemes provide their own appeal routes. The court respects legislative design: if Parliament intended a comprehensive appeal path (e.g., planning under TCPA), the claimant must use it. Judicial review remains available for jurisdictional error, procedural unfairness, or where the statutory path is inadequate.

Time limits and prejudice

Permission may be refused where the claimant chooses private law proceedings to avoid the shorter time limits in judicial review. Conversely, if the dispute is genuinely private with a public law background issue, the court will not force judicial review.

Worked Example 1.1

A local authority refuses to grant a taxi licence to an applicant. The applicant wishes to challenge the decision. Is this decision subject to judicial review?

Answer:
Yes. The decision is an act of a public body exercising statutory power, which directly affects the applicant's rights. Judicial review is the correct procedure.

Worked Example 1.2

A private nursing home for the elderly terminates a resident’s contract and seeks to evict her. Can the resident seek judicial review of the home’s decision?

Answer:
No. The nursing home acts in a private capacity—the decision is governed by contract rather than public law, and is not subject to judicial review. The claimant must use the ordinary civil courts.

Recognising Public Law Decisions

A public law decision is typically one:

• Made by a body or official under the authority of statute or the royal prerogative.
• Affecting legal rights or legitimate expectations of individuals, groups, or the public.
• Having binding legal consequences as opposed to being an internal policy, informal advice, or guidance.

Classic examples include ministerial decisions under enabling Acts, regulatory licensing, refusal of social security benefits, removal from public office, or sanction imposed under statutory powers.

Conversely, acts that are internal to private bodies, without statutory basis, or which derive authority solely from consensual relationships (e.g., club rules, private contracts), do not qualify.

Key Term: procedural exclusivity
The requirement that claims challenging a public law act or omission must (subject to recognised exceptions) be brought by judicial review, not ordinary civil action.

Who Is Amenable to Judicial Review

Judicial review applies to:

• Central government departments and ministers acting under statute or royal prerogative.
• Local authorities and public agencies, when exercising powers or duties conferred by legislation.
• Statutory tribunals and regulatory bodies with governmental, disciplinary, or adjudicatory powers.
• Non-statutory bodies and private entities (including companies or charities) where, under the relevant test, they perform public functions on behalf of the state or with significant public character.
• Inferior courts and certain tribunals, in relation to their exercise of public powers but not in relation to judicial acts immune from review.

Amenability factors in modern contexts

Public outsourcing and hybrid regulation blur boundaries. Courts concentrate on functional reality: if the private contractor is the practical gatekeeper of a statutory benefit or coercive regime (e.g., provider of asylum accommodation exercising statutory discretions), its decisions on those matters may be reviewable.

The Datafin Test: Source and Nature of Power

A key, contemporary test for identifying whether a body is amenable to judicial review is set out in R v Panel on Takeovers and Mergers, ex parte Datafin. The court adopts a two-stage, functional approach:

• Source of power: If the body is established under statute, secondary legislation, or exercises prerogative powers, it will generally be subject to judicial review.
• Nature of power: Where the body exercises power that—though derived from contract, voluntary association, or self-regulation—exhibits characteristics of a public function affecting the public at large or a section of the public, it may be reviewable. Factors include public interest, governmental character, regulatory exclusivity, and consequences for rights.

A private company contracted to run a prison under statutory authority may, for those purposes, be regarded as a public body, just as independent regulatory panels with a monopoly over a sector may be, if their decisions have public law consequences.

The Datafin test recognises that functional status, not merely source, can determine amenability, accommodating the realities of modern government and the expanding scope of public functions.

Worked Example 1.3

A professional sports association with nationwide regulatory power (e.g., the National Greyhound Racing Club) disqualifies a prominent member for misconduct. The member challenges the decision. Is judicial review appropriate?

Answer:
Judicial review is unlikely to be appropriate unless the association's power derives from legislation or has sufficient public character. If participation is contractual and enforcement is private, private law actions (e.g., breach of contract) are the correct route.

Contemporary Examples

• Local authority decisions on public housing allocation.
• Decisions by the General Medical Council or Bar Standards Board in their professional regulatory capacities (where these exercise conferred powers with public effect).
• Rulings by the Parole Board or Education authorities concerning matters of public welfare.
• Decisions by election returning officers or public exam boards responsible for state functions.

Where a private body is entrusted with statutory powers (such as a private provider commissioned to run a prison, or an organisation running a state school), its relevant decisions may be susceptible to judicial review in respect of those functions only.

Conversely, decisions by clubs, mutual societies, or religious bodies are generally not open to judicial review unless carrying out delegated governmental functions.

Worked Example 1.4

A private utility company, contracted by a local authority to distribute water, makes a decision about water allocation. The contract is commercial. Is this susceptible to judicial review?

Answer:
Unless the company is exercising statutory powers or carrying out functions with a sufficient public dimension, its acts will not be reviewable.

Non-Reviewable Decisions

Certain decisions are not subject to judicial review

• Those of private individuals, companies, clubs, or non-public bodies acting in a private capacity.
• Internal disciplinary or governance decisions of private associations, unless endowed with statutory or governmental authority.
• Decisions made in exercise of rights arising purely from consensus (e.g., membership agreements), with no statutory basis or public law content.
• Parliamentary decisions and conduct of proceedings within the Houses of Parliament, protected by the doctrine of parliamentary privilege (enrolled bill rule).

The "enrolled bill rule" and parliamentary sovereignty mean that courts do not review the validity of Acts of Parliament or parliamentary procedure. Claims attempting to challenge the internal affairs of Parliament are not justiciable.

Where a statutory regulator or public authority acts ultra vires, or outside its jurisdiction, the courts may intervene by way of judicial review, but not where acts are immune by specific provision or unreviewable by express parliamentary intent (ouster clauses).

Worked Example 1.5

A private club expels a member for alleged misconduct under its internal rules. The member alleges unfairness and seeks judicial review.

Answer:
Judicial review would not apply. The club is a private association, not exercising a public function or statutory power; the dispute is governed by contractual terms and private law.

Distinguishing Features: Public vs Private Law

A body is only amenable to judicial review:

• Where its powers are derived from public law (statute or prerogative) or concern governmental/administrative functions.
• Where the act or decision has binding legal effect on individuals, the public or a section of the public.
• Where the power derives from consensual arrangements alone, without a mandatory or statutory origin, decisions fall under private law.

For example, the Jockey Club, though it governs horseracing with nationwide significance, is not subject to judicial review since its authority derives from contract with those who choose to participate, not from statute.

Worked Example 1.6

A charitable housing association evicts a tenant. The association has entered separate arrangements with a local authority for the provision of social housing but is not acting under statutory powers in this eviction.

Answer:
If the decision to evict is pursuant to public law powers delegated by the authority, judicial review may be permitted. If, however, the association is acting under a private tenancy agreement, it will be a matter for private law.

Sufficient Interest

Suffici​ent Interest

The test for standing in judicial review, requiring a claimant to show a real, substantive interest in the subject matter of the challenged act or decision—the basis for locus standi.

Key Term: sufficient interest
The threshold a claimant must meet to be heard: a genuine, non-trivial connection to the decision under challenge.

Key Term: standing (locus standi)
The court’s assessment of whether the claimant has sufficient interest to bring a judicial review claim.

Standing (Locus Standi): Who Can Bring a Claim

The test for standing in judicial review is governed by statute and case law (Senior Courts Act 1981, s.31(3)). The claimant must have "sufficient interest" (locus standi) in the matter to which the application relates.

The courts adopt a flexible approach, recognising:

• Individuals who are directly, personally, and adversely affected by a public authority’s act will always have standing.
• Groups, associations, and pressure groups may be granted standing if acting to protect collective or public interests, particularly where no directly affected individual is available or willing to bring the case, and where issues of broad public or constitutional importance are at stake.
• In determining standing, courts consider not only the claimant’s connection to the subject matter but also the gravity and nature of the alleged illegality, the risk of unchallenged unlawful action, and the practical availability of alternative challengers.
• It is not enough for a claimant to be a “busybody” or to raise an entirely hypothetical or abstract challenge; there must be a genuine, non-trivial connection and a plausible legal issue to be determined.

Factors for Standing

The courts assess:

• The significance and substance of the issue.
• The claimant’s interest and connection (is it direct, indirect, representative, or public interest?).
• The adequacy of any other challenger.
• Whether a denial of standing would risk unlawful acts going unchecked.
• The presence or absence of alternative remedies or parties more directly affected.

Standing (Locus Standi) in Judicial Review Proceedings

The capacity of a claimant to be heard in judicial review proceedings, conferred where the court is satisfied there is sufficient (i.e., real, substantive) interest in the impugned decision or act.

Standing for Groups and Public Interest Claimants

Pressure groups may be granted standing if:

• The challenge raises an issue of genuine public importance affecting a significant segment of the population.
• The group is well-placed in terms of experience, or connection to the issue (e.g., environmental organisations challenging breaches with wide implications).
• There is no identifiable or willing individual with a direct interest who can challenge.

Courts recognise that in some areas—such as environmental law, equality, or the vindication of the rule of law—a broader approach is necessary to ensure unlawful acts are not shielded from scrutiny merely by technical or procedural defense.

Worked Example 1.7

A national non-profit environmental organisation seeks judicial review of a government policy to approve the construction of a new airport on protected land. No specific individual resident has come forward.

Answer:
The group may be granted standing if it is directly involved in environmental protection, and there is no better-placed challenger.

Limitations and Exclusions

• An association with only indirect or generalised concern will not automatically be granted standing. The courts guard against the dilution of the standing test into a general right to litigation, focusing on whether there is a real link to the contested issue.
• Where individual claimants exist with a much stronger claim to standing, courts may prefer those claims to be brought, and may deny standing to peripheral group claims.
• Organizations formed solely to litigate a particular issue (without ongoing relevant interest or activity) may also be refused standing.

Worked Example 1.8

A company whose tax arrangements are unaffected by a new regulatory policy seeks to challenge it in the public interest.

Answer:
Unless the company can demonstrate direct effect (e.g., a change in its own legal rights), standing will likely be denied.

The Sufficient Interest and Merits Nexus

The concept of "sufficient interest" is closely linked with the merits: the stronger or more serious the claim of illegality, the more readily standing is found. Courts may defer/determine the question of standing during the substantive hearing where it is intertwined with the consideration of issues.

Where a challenge raises important legal issues, particularly constitutional and rule of law questions, courts are less likely to find claimants to lack standing—“standing should not become a barrier to legality”.

Reconsidering Standing

The court will examine standing:

• At the permission stage (early filtering of claims).
• At the full hearing (especially if the relationship between claimant and issue is unclear).
• In connection with other procedural matters (e.g., exhaustion of alternative remedies).

If, on the full facts, a claimant is found to lack sufficient interest, the claim will be dismissed, but so too may claims that are frivolous, academic, or brought by strangers unrelated to the issue.

Standing in Human Rights Claims

Under the Human Rights Act 1998, the standing requirement is more restrictive: only a "victim"—someone who is directly and personally affected by the unlawful act—may bring a claim for infringement of a Convention right. Public interest groups cannot bring claims unless directly affected.

• Article 34 of the ECHR defines a “victim” as a natural or legal person directly affected by the alleged violation.
• Family members may have standing where their own rights are implicated.
• This is stricter than the common law “sufficient interest” test.

Key Term: victim
Under HRA 1998, s.7, only a person directly and personally affected by the alleged violation of Convention rights may bring proceedings in a UK court.

Worked Example 1.9

A human rights organisation wishes to bring a claim under the Human Rights Act challenging legislation that allegedly affects prisoners’ voting rights. The organisation is not a ‘victim’ within Article 34 ECHR.

Answer:
Only individuals whose own Convention rights are affected (or who risk being affected) can qualify as "victims" for the purposes of standing under the Human Rights Act.

Summary Table: Reviewable Decisions

Judicial Review and Human Rights Claims

Claims alleging unlawful action under the Human Rights Act 1998 are subject to the "victim" standing test (s.7(1)), a longer limitation period (usually within one year of the act), and may lead to additional or different remedies (including declarations of incompatibility, damages, or specific orders to remedy breaches). Not every breach of human rights falls within judicial review, and in some cases a statutory appeal or other procedure will take precedence.

Victim

For Human Rights Act 1998 claims, a person who is directly and personally affected by the alleged violation of a Convention right, as defined in Article 34 ECHR.

Exam Warning

The courts are alert to the risk of judicial review claims brought by mere busybodies or in circumstances where there is no real legal interest. While standing rules are applied flexibly to ensure legality, the courts insist on a legitimate connection to the alleged illegality and take into account enforcement and the risk of unlawful official acts going unchecked.

However, where the rule of law or observance of constitutional principle is at stake, or where governmental power risks going unchecked, courts may relax strict standing criteria to permit responsible public interest challenges.

Exceptions and Flexibility

The courts exercise discretion both at the permission stage and at the full hearing, and will balance the need to preserve meaningful access to lawful challenge, the avoidance of abuse, and the practical protection of public and individual interests.

• Standing and the requirement for a reviewable act are assessed both at the outset and—if necessary—after the facts have been established.
• Judicial review will not be permitted where another adequate remedy exists (e.g., statutory appeal, complaint procedure, specialist tribunal).
• Procedural failures (e.g., delay, insufficient connection, non-reviewable act) are grounds for refusal, but extensions are sometimes permitted in the interests of justice.

Remedies and Justiciability

Judicial review is an exceptional remedy, available where appropriate and proportionate, and only where other suitable avenues are unavailable or have been exhausted.

• The courts may refuse judicial review where another remedy (statutory appeal, complaint, ombudsman process) is more appropriate, or where the matter is not justiciable (e.g., high policy, political questions, international relations).
• Decisions found non-justiciable (for example, deployment of troops, foreign affairs) are generally outside the scope, unless a concrete legal right is involved.

Remedies available include the quashing order (setting aside or nullifying a decision), prohibiting order (preventing unlawful action), mandatory order (requiring lawful performance of duty), declaration (clarifying legal position), and (rarely) damages (when a private law cause of action also exists).

Key Term: justiciability
The capacity of a matter to be determined by a court; some areas (e.g., high government policy) are excluded from judicial review due to constitutional or practical limits.

Modern remedial developments

Under the Judicial Review and Courts Act 2022, courts may grant suspended quashing orders and prospective-only relief in appropriate cases, allowing unlawful decisions to remain temporarily in place while defects are corrected, or limiting retrospective consequences to protect third parties and administrative certainty.

Worked Example 1.10

A court is asked to review the UK government's decision to enter into a new international treaty.

Answer:
The matter involves high policy and the exercise of prerogative powers; unless an individual's legal rights are directly affected, the matter is likely to be treated as non-justiciable.

Procedural Requirements and Further Constraints

Before seeking permission for judicial review, a claimant must:

• Challenge a decision, act, or omission that is appropriately subject to review and made by a body amenable to judicial review.
• Demonstrate sufficient interest as described above.
• Bring the claim promptly, and in any event within three months (with shorter time limits in certain areas, such as six weeks for planning and 30 days for some procurement matters).
• Comply with the pre-action protocol (letter before claim, attempt at resolution).
• Overcome the permission ("leave") requirement; permission will be refused if the claim lacks merit, has no prospect of success, or is out of time without good reason.
• Show that there is no suitable alternative statutory remedy available or, where one exists, explain why judicial review is more appropriate.

Key Term: reviewable decision
(See above for definition; the claim must identify a discrete, legally effective act or omission.)

Permission stage: arguability and filters

Claims must be arguable, with a realistic prospect of success, not fanciful. Courts may refuse permission if it is highly likely the outcome for the claimant would not have been substantially different (s.31(2A), Senior Courts Act 1981), unless there is an exceptional public interest.

Time limits: promptness and certainty

“Promptly” means as soon as practicable. The outer limit is three months, but promptness still matters. Shorter limits apply:

• Planning statutory challenges: generally 6 weeks.
• Public procurement remedies: generally 30 days (extendable to 3 months in some circumstances).
• HRA claims: generally one year (subject to equitable discretion).

Delay can be fatal, especially where prejudice to good administration is shown.

Alternative remedies and exhaustion

Where Parliament has provided a route of appeal or specialist review, it should be used. Judicial review is residual. Courts ask whether the statutory route is adequate and effective; if so, judicial review will be refused unless there is good reason (e.g., bias, unfairness, jurisdictional excess).

Ouster and partial ouster clauses

Statutory attempts to exclude judicial review are interpreted restrictively. Anisminic established that an unlawful determination is a nullity and does not fall within “finality” clauses. Partial ousters (short time limits) may be upheld where clear and reasonable, but courts guard against clauses that undermine legality review. Recent case law continues to scrutinise ouster provisions for compatibility with the rule of law.

Key Term: procedural exclusivity
(See above for definition; links with time limits and alternative remedies.)

Worked Example 1.11

A claimant misses the three-month JR time limit but brings a well-founded claim at five months, arguing they only discovered the illegality recently and the authority concealed key documents.

Answer:
The court may extend time if justified (late discovery, concealment), especially for serious illegality and where prejudice is limited. However, promptness and the interest of good administration weigh heavily; evidence of concealment strengthens the case for extension.

Grounds of Review: Illegality, Irrationality, Procedural Impropriety, Legitimate Expectation

Courts often speak of three classic grounds (Diplock in GCHQ), with legitimate expectation integrated under fairness.

Illegality (Ultra Vires)

Illegality occurs when a decision-maker:

• Acts beyond the scope of powers (simple ultra vires).
• Uses power for improper purposes.
• Takes into account irrelevant considerations or ignores mandatory relevant ones.
• Fails to exercise discretion or unlawfully fetters it (rigid policies).
• Delegates unlawfully.
• Misinterprets law or commits material error of fact causing unfairness.

Examples include Padfield (minister must exercise discretion to achieve statutory purpose), World Development Movement (funding a project outside statutory objectives), and discretionary policies applied inflexibly (lawful to have policies, but discretion must be kept alive).

Irrationality (Wednesbury Unreasonableness)

Irrationality is a high threshold: a decision so unreasonable that no reasonable authority could have made it. Courts apply varying intensity:

• “Super-Wednesbury” deference for broad social/economic policy.
• “Anxious scrutiny” for fundamental rights or serious impacts.
• Proportionality analysis in ECHR and retained EU contexts.

Procedural Impropriety (Natural Justice)

Procedural fairness includes:

• The duty to consult where required or legitimately expected.
• The right to be heard (notice, opportunity to respond).
• The rule against bias (automatic disqualification for direct interest; apparent bias assessed by the fair-minded observer).
• Compliance with mandatory or directory procedural requirements (failure may vitiate the decision depending on purpose and effect).

Legitimate Expectation

• Procedural expectation: An expectation of consultation or process based on past practice or promises.
• Substantive expectation: An expectation of a benefit or policy being applied, where fairness demands its protection (subject to overriding public interest and rational change management).

Courts balance fairness against policy change, transparency, and proportionality.

Worked Example 1.12

A regulator adopts a new policy without consultation, reversing a long-standing practice to hear representations before imposing fines. A business is fined without an opportunity to be heard.

Answer:
Procedural impropriety likely arises: a legitimate expectation of being heard was created by consistent past practice. Absent compelling reasons, fairness requires maintaining the process or consulting on change.

Recognising Justiciability Limits

Some matters cannot be adjudicated, not because they are unimportant, but because they concern political judgment beyond judicial standards:

• High policy under the prerogative: e.g., war and peace, major diplomatic moves (subject to legality constraints such as Miller (No. 1) on treaty withdrawal requiring legislation when domestic rights are changed).
• Parliamentary proceedings protected by privilege.

Key Term: justiciability
(See above for definition; demarcates political questions from legal ones.)

Worked Example 1.13

A claimant seeks to challenge the minister’s advice to the monarch to appoint a particular person as Prime Minister.

Answer:
Non-justiciable. Appointment of ministers and the Prime Minister concerns constitutional convention and prerogative without legal standards for court enforcement.

Practical Stages of a JR Claim

1. Pre-action correspondence: Send a detailed letter before claim; seek disclosure; propose ADR where suitable.
2. Permission: File claim promptly with grounds, evidence, and draft order; meet arguability threshold.
3. Substantive hearing: Focused on law and process; evidence generally limited to documents and witness statements explaining process.
4. Remedies: Tailored to legality, fairness, and administrative practicality; may be withheld if futile or disproportionate.

Key Term: public body
(As above; include hybrid bodies exercising public functions.)

Worked Example 1.14

A statutory tribunal refuses to consider relevant evidence because of a rigid internal guideline, resulting in denial of a benefit.

Answer:
Unlawful fettering of discretion and failure to consider relevant matters; decision likely quashed.

Justiciability and Prerogative: Where Courts Step In

While high policy is out of bounds, courts enforce legal limits:

• Prerogative cannot change domestic law or rights (Miller (No. 1): triggering Article 50 required legislation).
• Prorogation advice must be lawful and consistent with constitutional principles (Miller (No. 2)).
• Prerogative decisions affecting individual rights (passports, pardons) are reviewable for legality and fairness.

Worked Example 1.15

The Home Office revokes a passport on vague national security grounds without reasons or a chance to respond.

Answer:
Reviewable. While national security engages sensitive material, fairness requires gist disclosure where possible and a fair process (e.g., special advocates or closed material procedures where applicable).

Recognising Public/Private Law Boundaries in Practice

In outsourcing, ask:

• Is the contractor acting as the statutory decision-maker?
• Does the decision have coercive or status effects?
• Are there public law duties (e.g., fairness) implied by statute or scheme design?

Where yes, judicial review may be available specifically for those functions.

Worked Example 1.16

An outsourced asylum accommodation provider terminates accommodation for non-compliance, effectively rendering an asylum seeker homeless. The decision flows from the statutory asylum support regime.

Answer:
Reviewable in public law for the limited function; the provider acts as part of the statutory support system, affecting legal status and benefits.

Additional Procedural Topics

Disclosure and evidence

JR is document-driven. Applicants should seek disclosure of decision records, minutes, and policies. The court may order disclosure where necessary to determine lawfulness.

Interim relief

Courts can grant interim relief to preserve the status quo and prevent irreversible harm (e.g., stay of removal, injunction against enforcement). Applicants must show a real prospect of success and balance of convenience.

Costs

JR costs follow the general rule of loser pays, subject to discretion. Protective costs orders may be considered in public interest environmental claims (Aarhus regime caps) to encourage access to justice.

ADA and specialised jurisdictions

Administrative Court lists include planning, immigration, prisons, and regulatory challenges. Each has bespoke rules and time limits; careful forum selection and adherence to pre-action protocols are important.

Worked Example 1.17

A planning permission challenge is brought by judicial review at 10 weeks. The statute provides a six-week time limit for such challenges.

Answer:
Out of time; planning statutory challenges are strictly time-limited. The claim will likely be dismissed unless an exceptional reason for extension is accepted (rare).

Interaction with Human Rights and Retained EU Law

• HRA claims: consider s.3 interpretation duty, declarations of incompatibility, and victim status.
• Retained EU law: domestic courts may still apply EU-derived principles where relevant; however, post-withdrawal status focuses on statutory mechanisms (EUWA 2018). Proportionality review may arise in contexts engaging rights or retained regulatory schemes.

Worked Example 1.18

A regulatory ban impacts freedom of expression. The authority relied on broad policy grounds without evidence.

Answer:
Where rights are engaged, courts apply heightened scrutiny or proportionality. The authority must justify necessity and balance; inadequacy may lead to quashing.

Key Point Checklist

This article has covered the following key knowledge points:

• Judicial review is available only in respect of decisions, acts, or omissions by public bodies or private actors exercising public functions.
• A reviewable decision must have legal effect, such as the alteration of rights, obligations, status, or legitimate expectations.
• The distinction between public law and private law is fundamental to identify the correct legal pathway and protect the procedural integrity of judicial review.
• The Datafin test determines amenability: both statutory and non-statutory bodies may be reviewable if exercising public functions of sufficient public character or consequence.
• Procedural exclusivity means that public law issues are usually to be determined by judicial review; exceptions allow for private law proceedings with collateral public law issues.
• Claimants must have "sufficient interest" (standing or locus standi), a pragmatic test emphasising direct, substantial interest or, in certain circumstances, responsible public interest, especially where there is no more directly affected alternative applicant.
• Pressure groups and representative organisations are sometimes granted standing, especially to ensure the rule of law and accountability, but only where the court is satisfied there is a real and genuine interest.
• Human rights claims are constrained by the "victim" standing requirement, and only those directly affected may bring claims.
• Procedural requirements—prompt timing, exhaustion of alternatives, compliance with permission stage—are strictly enforced but are subject to judicial discretion where justice requires.
• Judicial review is not available for political questions, high policy matters, certain exercises of the prerogative, or areas excluded expressly or by necessary implication from review.
• The courts exercise a supervisory (not appellate) jurisdiction, focusing on lawful process, fairness, and rationality, not the correctness of the decision as to its substance.
• Remedies include quashing, prohibiting, mandatory orders, declarations, damages (rare), and modern suspended quashing orders under the Judicial Review and Courts Act 2022.
• Ouster and partial ouster clauses are construed restrictively; unlawful determinations fall outside finality protections.
• Time limits vary: general JR 3 months (promptness required), planning 6 weeks, procurement 30 days, HRA 1 year.

Key Terms and Concepts

• judicial review
• reviewable decision
• public law
• private law
• public body
• sufficient interest
• standing (locus standi)
• victim
• procedural exclusivity
• justiciability

Additional Worked Examples (Applied Scenarios)

To consolidate understanding, the following scenarios illustrate amenability, standing, and justiciability in practice.

Worked Example 1.1

A university’s examination board voids a student’s result for alleged cheating. The university is chartered; exams determine degree status.

Answer:
Reviewable. Although the university is not a local authority, its decisions on degree awards have statutory/charter status implications; courts have reviewed such administrative processes for fairness and reasonableness.

Worked Example 1.2

An NHS Trust reallocates clinical services between hospitals, affecting waiting times. A local campaign group claims irrationality.

Answer:
Reviewable in principle. Resource allocation involves policy and technical knowledge, attracting deference. Claimants must show legal error (e.g., failure to consult where required, ignoring mandatory considerations) rather than mere disagreement on merits.

Worked Example 1.3

A prisoner’s open conditions review is refused without reasons. Internal policy permits refusals based on security concerns.

Answer:
Reviewable. Fairness generally requires reasons sufficient to allow meaningful review; applying policy without individualized assessment may fetter discretion.

Worked Example 1.4

A minister issues guidance to councils encouraging a particular approach, but councils treat it as binding.

Answer:
The guidance itself may be non-reviewable if purely advisory, but misapplication by councils (treating it as binding without statutory basis) is reviewable and may be unlawful fettering.

Worked Example 1.5

A devolved administration adopts a policy potentially outside its legislative competence.

Answer:
Reviewable via competency challenge; courts assess whether the measure falls within devolved powers and respects reserved matters and rights constraints.

Revision Tip

When assessing amenability, ask three questions: (1) What is the source of power? (2) What is the nature/effect of the decision? (3) Does the decision alter legal status or coercively affect rights? If answers align with public hallmarks, judicial review likely applies.

Key Term: public body
(Reiterated: includes hybrid or outsourced entities for specific functions.)

Worked Example 1.6

An ombudsman declines to investigate a complaint citing policy. The complainant alleges fettering.

Answer:
Ombudsman decisions can be reviewable for legality and fairness. A blanket refusal contrary to statutory remit may be unlawful; a case-specific discretion is permissible.

Worked Example 1.7

A Police and Crime Commissioner issues a policy banning certain protests in public spaces without statutory backing.

Answer:
Reviewable. Restrictions on assemblies require statutory authority and proportionate justification; a policy alone cannot lawfully curtail rights.

Worked Example 1.8

A charity administering government grant schemes rejects an application inconsistently with published criteria.

Answer:
If the charity exercises a public function through delegated authority, its decision is reviewable. Inconsistent application may be unlawful and irrational.

Worked Example 1.9

A council issues a byelaw exceeding powers conferred by the parent Act.

Answer:
Reviewable and likely ultra vires; courts quash byelaws beyond statutory scope.

Worked Example 1.10

A professional regulator strikes off a member for misconduct, relying on irrelevant considerations.

Answer:
Reviewable. Disciplinary bodies must act within powers, consider relevant matters, and follow fair process. Irrelevance undermines legality.

Worked Example 1.11

A claimant challenges a consultation alleging it was rushed and pre-decided.

Answer:
Reviewable. Consultations must be at a formative stage, with adequate information and genuine consideration of responses (the Sedley principles of fairness).

Worked Example 1.12

An authority publishes a policy but departs from it in a particular case without explanation.

Answer:
Authorities may depart for good reasons; however, failure to give reasons and consider reliance/expectation may render the decision unfair.

Worked Example 1.13

An environmental group seeks a protective costs order in a JR against a major infrastructure project.

Answer:
Courts may apply Aarhus cost caps and consider protective orders to ensure access to justice in environmental public interest cases.

Worked Example 1.14

A claimant seeks a suspended quashing order to avoid immediate disruption to services while a defect is remedied.

Answer:
Available under JRCA 2022; courts weigh fairness, third-party reliance, and administrative certainty before granting such relief.

Worked Example 1.15

A JR targets ministerial statements to Parliament. The claimant alleges misrepresentation.

Answer:
Non-reviewable due to parliamentary privilege; the proper forum is Parliament and its committees.

Worked Example 1.16

A council invokes an ouster clause, arguing its decision is “final and conclusive.”

Answer:
Courts interpret ouster clauses narrowly; unlawful determinations are nullities (Anisminic). The clause will not bar review where the decision was outside jurisdiction or procedurally unfair.

Worked Example 1.17

A procurement challenger files out of time by one week in a 30-day regime.

Answer:
Strict limits usually apply; extension requires good reason and consideration of prejudice. Judicial review may be inappropriate where specific procurement remedies exist.

Worked Example 1.18

A community group challenges closure of a library based on alleged failure to consider equalities impacts.

Answer:
Reviewable. Authorities must comply with public sector equality duty; failure to have due regard may lead to quashing and reconsideration.

Worked Example 1.19

A local authority imposes a rigid 5-minute speaking limit at hearings, preventing meaningful participation.

Answer:
Procedural fairness requires reasonable opportunity to be heard; an inflexible cap that defeats meaningful participation may be unlawful.

Key Term: sufficient interest
(Reaffirmed: genuine connection and substantive stake in legality issues.)

This comprehensive treatment equips you to identify reviewable decisions, assess amenability, apply standing principles (including HRA victim status), manage procedural requirements (time limits, alternative remedies), and select proportionate remedies within constitutional limits of justiciability.