Judicial review - Nature and purpose of judicial review

Learning Outcomes

This article explains the nature and purpose of judicial review as a core mechanism in public law and clarifies its supervisory role over public authorities, distinguishing it from appeals on the merits. It outlines the constitutional context of judicial review, including the separation of powers, parliamentary sovereignty, and the function of the Administrative Court. It details the principal grounds of review—illegality (ultra vires), irrationality (Wednesbury unreasonableness), procedural impropriety, legitimate expectation, and proportionality in the human rights and EU context—and illustrates how courts apply these tests in practice. It examines the discretionary nature of judicial review remedies, such as quashing, prohibiting and mandatory orders, declarations and injunctions, and the factors influencing whether relief is granted. It discusses key procedural requirements for bringing a claim, including standing, promptness and time limits, and the need to exhaust alternative remedies. It also reviews the boundaries between public and private law, the procedural exclusivity principle, and the role of judicial review in upholding the rule of law and protecting individual rights.

SQE1 Syllabus

For SQE1, you are required to understand the nature and purpose of judicial review in public law, with a focus on the following syllabus points:

• the supervisory role of judicial review over public authorities, including the function and constitutional context of the Administrative Court
• the distinction between public law and private law remedies
• the main grounds for judicial review: illegality, irrationality, procedural impropriety, and legitimate expectation
• the constitutional significance of judicial review in upholding the rule of law, ensuring accountability of public bodies, and supporting the separation of powers
• the discretionary nature of judicial review remedies and limits of the court's intervention
• procedure for bringing a claim (standing, permissible time limits, remedies available)

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. What is the primary function of judicial review in relation to public authorities?
2. Which three main grounds can be used to challenge a public authority’s decision by judicial review?
3. Does judicial review allow the court to substitute its own decision for that of the public body?
4. What is the difference between judicial review and an appeal on the merits?
5. Why is judicial review considered essential for the rule of law?

Introduction

Judicial review is a core mechanism by which courts in England and Wales supervise the lawfulness of actions, decisions, and omissions of public bodies—including government ministers, local authorities, and statutory agencies. The essential purpose of judicial review is not to retake decisions but to ensure that decision-makers act within the legal boundaries set by Parliament and by general principles of administrative law, fulfilling both procedural and substantive legal obligations.

Key Term: judicial review
Judicial review is the process by which the courts supervise the exercise of public power by public authorities to ensure they act lawfully, rationally, fairly, and follow proper procedures.

The Supervisory Role of Judicial Review

Judicial review occupies a supervisory, rather than appellate, role. The courts do not set aside a public body’s decision merely because they would have reached a different conclusion. Instead, they examine whether the decision-maker stayed within the limits of their legal authority, considered only relevant factors, acted for proper purposes, and observed the minimum standards of fairness and reasonableness expected of public officials.

Key Term: supervisory jurisdiction
Supervisory jurisdiction refers to the power of the court to oversee and scrutinise the legality of actions by public bodies, intervening where a law or legal principle has been contravened, rather than remaking the decision.

The Administrative Court (a division of the High Court) is the primary forum for judicial review. Judicial review is strictly limited to the lawfulness of the process, not the merits or wisdom of the decision. This ensures the courts complement, but do not usurp, the executive’s policy-making function, preserving the constitutional balance known as the separation of powers.

The Purpose of Judicial Review

Judicial review serves several constitutional and practical purposes:

• Upholding the rule of law: It ensures that all public authorities, regardless of status, obey the law and are not above it.
• Ensuring accountability: Public bodies are held answerable for their actions, promoting openness, rationality, and transparency in decision-making.
• Protecting individual rights: Judicial review provides a means for individuals affected by unlawful or procedurally unfair decisions to seek redress.
• Promoting good administration: It supports consistency, lawful conduct, and the proper exercise of discretion across public administration.

Judicial review thus functions as a guardian of individual liberty, especially where other forms of redress may be unavailable or inadequate, and as a check on arbitrary or abusive governmental power.

Worked Example 1.1

A local council introduces a new policy restricting access to a public park, but the policy is not authorised by any statute or regulation. A resident is affected and wishes to challenge the policy.

Answer:
The resident may seek judicial review on the ground that the council acted without legal authority (illegality). The court will not consider whether the policy is sensible, but whether the council had the power to introduce it.

Grounds for Judicial Review

The courts recognise four principal grounds for judicial review. These derive from Lord Diplock’s classification in the GCHQ case: illegality, irrationality, procedural impropriety, and legitimate expectation. Each ground reflects a specific legal benchmark for the lawful exercise of public power.

Illegality

A decision is unlawful if the authority acts outside the powers conferred by law (ultra vires), misunderstands the law, takes into account irrelevant considerations, ignores relevant considerations, or uses its powers for an improper or unauthorised purpose.

Key Term: illegality
Illegality means that a public body has acted outside the scope of its legal powers or failed to comply with the law governing its actions.

Common examples include acting without legal authority, misunderstanding the extent of a statutory power, delegating functions unlawfully, or pursuing an outcome for which there is no statutory basis.

Key Term: ultra vires
Ultra vires means ‘beyond one’s powers’; a public body acts ultra vires where it exceeds the legal powers granted to it by Parliament or by the common law.

Irrationality

A decision is irrational if it is so unreasonable that no reasonable public authority could have made it—sometimes referred to as “Wednesbury unreasonableness,” following Associated Provincial Picture Houses Ltd v Wednesbury Corporation. Courts will only intervene where a decision is manifestly absurd, arbitrary, or defies the standards of logic and accepted moral values.

Key Term: irrationality
Irrationality is a ground for judicial review where a public decision is so unreasonable that no sensible authority, acting with proper consideration of the law and facts, could have taken it.

Key Term: Wednesbury unreasonableness
Wednesbury unreasonableness is the threshold test for irrationality; a court will not intervene unless the decision is ‘so unreasonable that no reasonable authority could ever have come to it.’

This is a high hurdle and does not entitle the court to substitute what it considers to be a preferable or more reasonable outcome.

Procedural Impropriety

A decision is procedurally improper if legal requirements relating to the process (such as consultation, providing reasons for the decision, or serving proper notice) are breached, or if there is a failure to observe the rules of natural justice—such as the right to a fair hearing or absence of bias.

Key Term: procedural impropriety
Procedural impropriety arises when a public body fails to observe the correct procedure—whether set down in legislation or required by the common law—when making a decision.

Key Term: natural justice
Natural justice concerns the basic requirements of fairness in legal proceedings, particularly the right to an impartial decision-maker (the rule against bias) and the right to a fair hearing (including notice of the case and the right to respond).

Most public decisions will be unlawful if made without following mandatory procedures, or if affected by bias or lack of fair process.

Legitimate Expectation

Judicial review sometimes protects the legitimate expectations created by a public authority’s representations or practices. If a public body makes a clear promise, or has established a regular practice that it will follow certain procedures or grant certain benefits, an individual may be entitled to a procedure or even a substantive benefit, unless overriding public interest demands otherwise.

Key Term: legitimate expectation
Legitimate expectation is where a person has a reasonable expectation, based on a representation, promise, or consistent past practice of a public body, that a certain procedure will be followed or benefit given, and this is protected by public law unless there is a lawful justification to depart from it.

A legitimate expectation may be procedural (expecting to be consulted or heard before a change of policy) or, less frequently, substantive (expecting a specific benefit or outcome).

Proportionality (in the ECHR and EU context)

Increasingly, courts consider whether decisions that interfere with rights are proportionate (especially under human rights law or retained EU law). This means any restriction on a right must not exceed what is necessary to achieve a legitimate objective; the interference must be suitable, necessary, and balanced.

Key Term: proportionality
Proportionality is a legal principle requiring that any limitation of a right must not be excessive and must be no more than is necessary to achieve a legitimate aim.

While proportionality is not generally a fourth free-standing domestic ground (except in human rights and EU law), courts may deploy it where Convention rights or EU rights are in play.

Worked Example 1.2

A government agency refuses an application for a licence without giving the applicant an opportunity to present their case or reasons for refusal.

Answer:
The applicant may seek judicial review for procedural impropriety, as the agency failed to provide a fair hearing (a breach of natural justice).

Worked Example 1.3

A local authority rigidly applies a blanket policy refusing housing benefit to certain applicants, without considering individual circumstances.

Answer:
This could be challenged for illegality (fettering discretion), as the authority is required to consider each case on its merits and not blindly follow a blanket policy.

Worked Example 1.4

A public health authority promised a disabled resident continued provision of home care, then withdraws it without any consultation or notice, despite a regular practice of giving notice and considering representations.

Answer:
The resident may have a legitimate expectation of consultation or of continued provision. The court may uphold the expectation unless there is an overriding reason in the public interest for the authority to change its approach without notice.

The Discretionary Nature of Judicial Review

Remedies in judicial review are always discretionary. Even when a ground is established, the court can decide not to grant a remedy for reasons such as delay, triviality, or overriding public interest. The courts must also consider whether granting a remedy would serve a useful purpose or has been overtaken by events.

Key Term: discretionary remedy
A discretionary remedy is an outcome (such as quashing a decision, a prohibiting or mandatory order) that the court may grant or deny, depending upon the particular circumstances of the case.

Judicial review remedies include:

• quashing orders (nullifying the unlawful decision)
• prohibiting orders (preventing a public body from acting unlawfully)
• mandatory orders (compelling a public body to carry out its duties)
• declarations (clarifying the legal position)
• injunctions (orders to do or refrain from specific acts, in exceptional cases).

Damages are rarely awarded and only in conjunction with another actionable wrong (for example, tortious liability).

Judicial Review and the Rule of Law

Judicial review is fundamental to the constitutional principle of the rule of law. In a democracy governed by law, everyone (including the State) is subject to legal limitation. Judicial review enforces this by enabling the courts to annul decisions that exceed the powers conferred by Parliament or that violate constitutional principles.

Key Term: rule of law
The rule of law is the principle that all persons and authorities, public or private, are subject to and accountable under the law, which must be applied equally and fairly.

The existence of independent judicial review ensures that public authorities cannot act arbitrarily, and that rights and liberties can be protected. At the same time, the courts respect Parliament's intention and judgment of public authorities in matters of policy, only intervening when legal limits are truly breached.

Worked Example 1.5

A central government department introduces a new benefit scheme but applies eligibility criteria that are not authorised by the enabling legislation. An affected individual challenges the criteria.

Answer:
The individual may seek judicial review on the ground of illegality. The court will consider whether the department acted within the powers granted by Parliament.

The Limits of Judicial Review

Judicial review is strictly limited to public law matters, meaning:

• It only applies to persons or bodies exercising public functions or powers derived from statute or the prerogative.
• It usually cannot be used to challenge the decisions of private individuals, companies, or organisations acting in a purely private capacity.
• Claims generally must be brought promptly and within prescribed time limits (not later than three months for most cases, and even shorter for some, such as planning disputes).
• Alternative remedies (such as statutory appeals) must be exhausted before seeking judicial review.
• Courts cannot ordinarily review primary legislation for substantive invalidity (subject only to compatibility declarations under the Human Rights Act 1998 or incompatibility with retained EU law).

Key Term: procedural exclusivity
The procedural exclusivity principle requires that public law matters, especially challenges to public acts, must be pursued by judicial review, not by ordinary civil action.

Key Term: standing
Standing (locus standi) in judicial review means that the claimant must have a sufficient interest in the matter to which the application relates.

The courts have developed a slightly more generous approach to standing where public interest is at stake, and groups or associations may sometimes have standing to challenge supervening illegality.

Exam Warning

Judicial review is not a way to appeal the merits of a decision. The court will not substitute its own judgment for that of the public body. An appeal, if available, deals with the merits—judicial review deals only with the lawfulness of the process and exercise of power.

Key Point Checklist

This article has covered the following key knowledge points:

• Judicial review is a core constitutional process by which courts supervise the lawfulness of actions and decisions made by public authorities.
• Its purpose is to uphold the rule of law, maintain accountability of the executive and public bodies, and protect individual rights from arbitrary exercise of power.
• Judicial review is a supervisory remedy: it is not an appeal on the merits, but a review of the lawfulness of decisions.
• The main grounds for judicial review are illegality, irrationality (Wednesbury unreasonableness), procedural impropriety (including breaches of natural justice and failure to follow mandatory procedures), and legitimate expectation.
• Courts may review the proportionality of a decision where Convention or retained EU rights are at issue.
• Judicial review cannot normally be used to challenge the correctness or wisdom of a decision—only its lawfulness.
• Remedies for judicial review (quashing, prohibiting, mandatory orders, declarations, and injunctions) are always discretionary, and will only be granted where appropriate.
• Judicial review claims must be commenced promptly, usually within three months of the challenged decision, and only after all alternative remedies have been exhausted.
• Only public bodies or those exercising public functions are amenable to judicial review; private law matters should be pursued through other legal channels.
• Standing is required: claimants must demonstrate a sufficient interest in the subject of the claim, with courts applying a flexible test based on the seriousness of the issue and public interest.

Key Terms and Concepts

• judicial review
• supervisory jurisdiction
• illegality
• ultra vires
• irrationality
• Wednesbury unreasonableness
• procedural impropriety
• natural justice
• legitimate expectation
• proportionality
• discretionary remedy
• rule of law
• procedural exclusivity
• standing