Judicial review - Supervisory jurisdiction of the courts

Learning Outcomes

This article examines judicial review and the courts' supervisory jurisdiction, including:

• The constitutional role of judicial review within the UK's uncodified constitution, and how it gives practical effect to separation of powers, the rule of law, and parliamentary sovereignty.
• The tension between effective judicial control of executive action and respect for parliamentary supremacy and democratic accountability.
• Core admissibility requirements for a claim: public law character, standing, amenability/public function tests, time limits, alternative remedies, and the permission stage.
• The principal grounds of review—illegality, irrationality (Wednesbury unreasonableness), and procedural impropriety—and their application in problem-style questions.
• The operation of natural justice and legitimate expectation as safeguards for procedural and, in limited circumstances, substantive fairness.
• The limits of judicial review as a review of lawfulness and process rather than an appeal on the merits, and the courts’ approach to separation of functions.
• Amenability of different bodies and decisions; interaction with ouster clauses, non-justiciability, alternative remedies, and the procedural exclusivity principle.
• The range, rationale, and discretionary nature of judicial review remedies, and how relief is tailored to restore lawful administration.
• The overall constitutional significance of judicial review in constraining public power, providing effective redress for individuals, and maintaining confidence in lawful, accountable government.

SQE1 Syllabus

For SQE1, you are required to understand the supervisory jurisdiction of the courts through judicial review, including its constitutional foundations, scope, grounds, procedures, and remedies, with a focus on the following syllabus points:

• the constitutional principles guiding judicial review (rule of law, separation of powers, judicial independence, and parliamentary sovereignty)
• the nature and scope of the courts' supervisory jurisdiction over public bodies
• distinction between administrative review (judicial review) and appellate review (appeal on the merits)
• the main grounds of judicial review (illegality, irrationality, procedural impropriety, legitimate expectation)
• who/what is subject to judicial review and the tests for amenability
• the limits and boundaries of the courts' supervisory powers, including non-justiciability and the impact of ouster clauses
• the procedural requirements for a judicial review claim (standing, time limits, alternative remedies, permission stage, exclusivity of procedure)
• the range, nature, and discretion of remedies available in 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. What is meant by the "supervisory jurisdiction" of the courts in the context of judicial review?
2. Which of the following is NOT a ground for judicial review?
   a) Illegality
   b) Irrationality
   c) Procedural impropriety
   d) Merits of the decision
3. Can a private company performing a public function be subject to judicial review? Briefly explain.
4. What is the main difference between judicial review and an appeal on the merits?

Introduction

Judicial review is fundamental to UK administrative law, serving as the mechanism by which the courts ensure public authorities and officials act within the law. The development of judicial review has been central in upholding two key principles: the rule of law—no one is above or beyond the law—and the separation of powers—ensuring a judicial check on executive power. As the UK's constitution is largely unwritten and flexible, judicial review acts as a safeguard, providing legal mechanisms to test the lawfulness and fairness of decisions by public bodies.

Key Term: judicial review
Judicial review is the court procedure by which the High Court (primarily the Administrative Court of the King's Bench Division) scrutinises the lawfulness of decisions, actions, or omissions of public bodies or public officials, ensuring their powers are exercised within legal boundaries.

Judicial review is not concerned with whether the decision made by a public body was right or wrong in a substantive sense (i.e., the merits), but with whether the correct legal process was followed and whether the power was lawfully exercised. In this way, judicial review underpins individual rights and provides a means to hold power to account, exemplifying a core aspect of constitutional legitimacy.

The Supervisory Jurisdiction of the Courts

The supervisory jurisdiction refers to the role of the High Court in reviewing the legality and procedural fairness of decisions or actions taken by public authorities or persons exercising public functions. The jurisdiction extends to the decisions of tribunals, inferior courts, government departments, ministers, local authorities, and some private bodies if their acts have sufficient public character.

Supervisory jurisdiction is bounded by the separation of functions. The courts do not substitute their own judgment for that of the decision-maker. Rather, they focus on whether the body exceeded its powers (ultra vires), acted unlawfully, or breached procedural requirements. In other words, the court acts as a constitutional umpire, intervening only to ensure officials remain within the law. The approach is designed to avoid judicial usurpation of the executive's policy-making role, protecting both the separation of powers and judicial impartiality.

Key Term: supervisory jurisdiction
The power of the High Court to supervise, by way of judicial review, the actions, decisions, and procedural conduct of public bodies to ensure their legality, rationality, and fairness, without substituting its own judgment for that of the primary decision-maker.

The existence of this jurisdiction also reflects the rule of law as articulated by Dicey and modern theorists: all conduct by public authorities must have a clear legal basis, and a remedy must be available for abuse of authority.

Grounds for Judicial Review

Judicial review is available principally on three classic grounds, as set out in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case):

Illegality

Illegality arises where a public body acts outside its legal powers (ultra vires), misinterprets the law, fails to take into account relevant considerations, takes into account irrelevant ones, or misuses its discretion contrary to the statute’s purpose.

Types of illegality include:

• Acting without legal authority
• Excess or abuse of power (misdirection in law or in fact)
• Unauthorised delegation of power or decision-making (subject to the Carltona principle for ministerial acts)
• Fettering of discretion (applying a rigid policy without considering individual cases)
• Ignoring relevant factors or considering irrelevant ones
• Acting for an improper purpose

Judicial review on grounds of illegality often requires close statutory interpretation and an understanding of constitutional principles, such as the requirement for proper authority for the exercise of power.

Key Term: illegality
The ground of judicial review where a public body or decision-maker acts outside the scope of its legal powers, misconstrues the law, or fails to comply with required statutory purposes or duties.

Irrationality

Sometimes described as "unreasonableness" or "Wednesbury unreasonableness" (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223), irrationality is established where a decision is so unreasonable that no reasonable authority could ever have made it. Judicial intervention on this ground is reserved for "outrageous defiance of logic or accepted moral standards."

The threshold is high: the decision must surpass mere incorrectness, bad reasoning, or even poor decision-making. Particularly in policy-laden or discretionary areas, the courts are careful not to overstep their constitutional function.

Key Term: irrationality
The principle that a decision subject to judicial review may be struck down if it is so unreasonable or perverse that no sensible authority could ever have reached it, as derived from the "Wednesbury" standard.

Irrationality is a rare ground for intervention outside ECHR and retained EU law cases, where the principle of proportionality may instead apply and a more intensive review is possible.

Procedural Impropriety

Procedural impropriety refers to failure to observe procedural rules or principles of natural justice, or to provide those affected by a decision with procedural fairness. This may involve both breaches of express statutory procedures and breaches of common law duties (natural justice).

There are two principal elements:

• The rule against bias (nemo judex in causa sua): decision-makers must not be biased or give the appearance of bias.
• The right to a fair hearing (audi alteram partem): individuals affected by a decision must have a fair opportunity to state their case.

Additionally, procedural impropriety may include failure to consult, failure to provide reasons where required, or a defective consultation process. Procedural fairness requirements may vary according to the impact of the decision and the statutory context.

Key Term: procedural impropriety
Failure by a public body to comply with required procedures (statutory or common law) in making decisions, including breaches of natural justice or mandatory consultation requirements.

Key Term: natural justice
The obligation to act fairly in the making of decisions which affect individuals, including the rights to be heard and to have one's case determined by an unbiased decision-maker.

Legitimate Expectation

As an adjunct to these three grounds, legitimate expectation protects situations where a public body’s representations or regular past conduct have created a clear expectation of a certain procedure or outcome (either procedural, e.g. consultation, or substantive). The courts may intervene where it is manifestly unfair to frustrate such an expectation without good reason.

Who and What Is Amenable to Judicial Review?

Judicial review applies to decisions and actions of:

• Central government ministers and departments
• Local authorities and their officers
• Public regulatory bodies and tribunals
• Statutory bodies

Additionally, judicial review may be available in respect of private entities exercising public functions, e.g. a private company running prisons or providing public housing. The courts apply two general tests:

• Source of power: Is the power being exercised under statute or delegated legislation?
• Nature of function: Is the function public in nature, even if exercised by a private entity?

Key Term: amenability to judicial review
The question whether a body, decision, or function is of a sufficiently public character for judicial review to be available as a remedy.

Not every decision by a public body is reviewable: only acts or decisions done in the exercise of a public law function are amenable. Private law matters, such as contractual or employment disputes between a public authority and an individual, are not normally subject to judicial review but are pursued as private law actions.

Worked Example 1.1

A private security company is contracted to manage a council-run housing estate, including evictions. An individual is evicted under a policy set by the company. The individual contends the policy is harsh, breaches Article 8 ECHR, and lacked proper consultation. Is judicial review available?

Answer:
Depending on the facts, it is likely the company's decisions are amenable to judicial review since they are exercising functions of a public nature (evictions from public housing). The court will examine both the provision and character of the decision-making process.

Limits of the Supervisory Jurisdiction

There are constitutional boundaries restricting the courts' role in reviewing public decisions.

• Judicial review is not concerned with the merits or wisdom of the decision but with its lawfulness and fairness.
• Policy matters of "high politics," such as national security, defence, or foreign affairs, are often regarded as "non-justiciable" because they are inappropriate for legal adjudication.
• Statutory ouster clauses may attempt to exclude or restrict access to judicial review. The courts treat absolute ouster clauses with strong suspicion—interpreting them narrowly to protect access to justice (as in Anisminic v Foreign Compensation Commission [1969] 2 AC 147). However, partial ouster clauses, which impose strict time limits, may be upheld.
• Parliament can provide alternative, sometimes exclusive, statutory remedies. Where a suitable alternative remedy exists (such as a statutory appeal), the court will expect claimants to use that remedy before seeking judicial review.

Key Term: non-justiciable
Refers to matters that the courts decline to adjudicate—typically issues involving the exercise of prerogative power in areas of high policy (e.g., going to war), or issues allocated purely to Parliament by law or convention.

Key Term: ouster clause
A legislative provision seeking to limit or completely exclude the authority of the courts to review a particular decision or act.

Additionally, the time limits for bringing a judicial review (normally three months, sometimes shorter, as in planning challenges) act as a limitation on the jurisdiction. The court retains discretion to refuse to entertain a claim that is out of time or where there is a serious delay.

Judicial review also cannot be used to challenge primary legislation; it is restricted to subordinate legislation and acts of public bodies.

Key Procedural Features

To bring a claim in judicial review, the following procedural elements must be satisfied:

• The claim must concern a public law issue (procedural exclusivity principle dictates that public law claims are brought by judicial review, not in ordinary civil actions)
• The claimant must have "sufficient interest" (locus standi) in the matter
• Permission to proceed (formerly "leave") must be obtained at the outset (permission stage)
• The claim must be brought promptly, within the required time limit (typically within three months of the relevant decision; shorter in some cases)
• Any appropriate alternative remedies (such as a statutory appeal) must normally be exhausted before applying for judicial review

Standing (Sufficient Interest)

The test for standing is contextual: is the claimant directly affected by the decision or does the case raise a matter of public importance? Group and public interest standing may be accepted where merited (e.g. in judicial review of unlawful public expenditure or major constitutional issues).

Key Term: standing (sufficient interest)
A requirement that the person bringing the judicial review claim must have a direct, personal, or at least sufficient interest in the subject matter and the decision at issue.

Permission Stage

The courts carry out an initial filtering process at the permission (leave) stage to ensure there is an arguable case with a realistic prospect of success. This is intended to prevent misuse of judicial review in furthering unarguable or trivial claims. If permission is refused on the papers, an oral renewal may be sought.

Key Term: permission stage
The preliminary step in judicial review proceedings; the court determines whether the claim is arguable and should be permitted to proceed to a substantive hearing.

Exclusivity of Procedure

Following the House of Lords decision in O'Reilly v Mackman [1983] 2 AC 237, the "procedural exclusivity" principle holds that claims involving public law issues must be pursued using judicial review, not by ordinary civil action. The courts may strike out a public law claim brought by improper procedure.

Alternative Remedy

Where a suitable statutory appeal, other statutory remedy, or internal review exists, the courts expect claimants to pursue these before judicial review, except where the alternative is inadequate or inappropriate.

Time Limits

Judicial review claims must be brought "promptly and in any event within three months" of the grounds arising (CPR r 54, s 31(6) Senior Courts Act 1981), and sometimes less (e.g., six weeks for planning decisions). Late claims are likely to be dismissed unless there is a good reason.

Remedies Available

Remedies in judicial review are discretionary and aim to restore lawful administration or prevent unlawful action. The principal remedies are:

• Quashing order (certiorari): Sets aside the unlawful decision, requiring the authority to reconsider the matter lawfully.
• Prohibiting order (prohibition): Forbids a public body from acting outside its powers or continuing an unlawful practice.
• Mandatory order (mandamus): Compels a public body to perform a public duty.
• Declaration: States the legal rights and duties of the parties; clarifies legality without directly overturning the decision.
• Injunction: Restrains unlawful action or requires specific action; may be interlocutory (temporary) or final.
• Damages: Damages are generally not available in stand-alone judicial review. Compensation may be awarded only where the claimant has an additional private law cause of action.

Remedies are always discretionary, not automatic, even if unlawfulness is shown. The court may decline relief if the claimant has delayed, has acted improperly, or if a remedy would serve no useful purpose.

Key Point Checklist

This article has covered the following key knowledge points:

• Judicial review is a remedy whereby judges, principally in the High Court, review the lawfulness (but not the merits) of decisions, actions, or failures to act by public bodies.
• The core grounds for seeking judicial review are illegality, irrationality (Wednesbury unreasonableness), and procedural impropriety, including breaches of natural justice. Legitimate expectation also plays an important role.
• Only acts of public bodies or those exercising public functions are amenable to judicial review.
• Judicial review cannot be used as a disguised appeal on the merits, nor to challenge Acts of Parliament.
• Non-justiciable issues remain beyond the reach of judicial review, especially in areas of high policy, and the courts generally interpret ouster clauses strictly to preserve review in most cases.
• Judicial review applicants must have standing (sufficient interest), must act promptly and within strict time limits, and must exhaust any alternative adequate statutory remedies; the claim must pass through the permission stage.
• The court has a wide range of discretionary remedies—quashing orders, prohibiting orders, mandatory orders, declarations, injunctions, and, in rare cases, damages.

Key Terms and Concepts

• judicial review
• supervisory jurisdiction
• illegality
• irrationality
• procedural impropriety
• natural justice
• amenability to judicial review
• non-justiciable
• ouster clause
• standing (sufficient interest)
• permission stage