Judicial review - Supervisory jurisdiction of the courts

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Overview

Judicial review plays a vital role in UK administrative law, acting as a mechanism to ensure public authorities' decisions meet legal, rational, and fair standards. This article examines the supervisory function of judicial review, its constitutional roots, and its changing role within the UK legal framework, all necessary for SQE1 FLK1 exam candidates.

Constitutional Foundations and Historical Development

Judicial review is embedded in the UK's constitutional setup, balancing parliamentary sovereignty with the rule of law. Its roots can be traced back to significant cases like Dr. Bonham's Case (1610), where Sir Edward Coke advanced the idea of judicial oversight.

Judicial review provides essential checks and balances within the UK's unwritten constitution by limiting executive power and maintaining natural justice. The 20th century saw its expansion, notably impacted by the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, which established 'Wednesbury unreasonableness.'

Principles of Judicial Review

Judicial review is grounded in three main principles, holding public officials accountable:

Illegality

Public bodies must act within their legal authority, which includes:

  1. Ultra vires: Actions must stay within statutory powers.
  2. Proper purpose: Powers are used for intended reasons.
  3. Relevant considerations: Decision-making must consider all significant factors.

Example: In R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 AC 513, the Home Secretary's actions were deemed unlawful for bypassing required parliamentary approval.

Irrationality (Wednesbury Unreasonableness)

Stemming from the Wednesbury case, this principle checks decision rationality, posing a high threshold to ensure authority decisions are sound.

Example: In R v Lord Saville of Newdigate, ex parte A [1999] 4 All ER 860, a decision was overturned due to its irrational nature regarding the safety risks involved.

Procedural Impropriety

Ensures fair procedures are followed, with requirements such as:

  1. A fair hearing
  2. Absence of bias
  3. Duty to provide reasons

Example: In Ridge v Baldwin [1964] AC 40, procedural fairness was highlighted when a chief constable was dismissed without a hearing.

Key Cases and Their Impact

Council of Civil Service Unions v Minister for the Civil Service (GCHQ case) [1985] AC 374

This case affirmed prerogative powers' subjection to judicial review and highlighted 'legitimate expectation.'

R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

The Supreme Court ruled that parliamentary approval was necessary to trigger Article 50, reinforcing parliamentary sovereignty.

R (Cart) v Upper Tribunal [2011] UKSC 28

The court decided that decisions of the Upper Tribunal could be judicially reviewed, though under restricted circumstances.

Applications Beyond Public Entities

Judicial review has extended to private bodies with public roles.

Amenability to Judicial Review

Based on R v Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815, judicial review applies if a body's powers and functions are public.

Hybrid Public-Private Bodies

Courts determine judicial review applicability when entities serve public purposes.

Example: In R (Weaver) v London and Quadrant Housing Trust [2009] EWCA Civ 587, a housing association's public function led to its decisions being reviewable.

Limitations and Criticisms

Judicial review must tread carefully to avoid excessive interference in policy, respecting separation of powers while being mindful of human rights influences.

Proportionality vs. Wednesbury

The proportionality principle, influenced by EU law, offers a refined review approach, as seen in R (Daly) v Secretary of State for the Home Department [2001] UKHL 26.

Post-Brexit Developments

Following Brexit, the direction of judicial review may shift, raising questions about its future role and potential statutory codification.

Conclusion

Judicial review remains a critical tool in ensuring that administrative decisions are legal, rational, and fair in the UK. Its principles, historical developments, key cases, and ongoing debates are vital for SQE1 FLK1 candidates to fully understand.

Key points to remember:

  1. Judicial review is based on illegality, irrationality, and procedural fairness.
  2. Landmark cases like GCHQ and Miller have shaped its scope.
  3. It now extends to some private entities performing public functions.
  4. Debate continues on balancing judicial oversight with executive powers.