The idea of judicial review

judicial review - tool to make the rule of law operational in decision making, it examines the legality of a decision, not its merit

things that judicial review questions

• if the power was used for its correct statutory purpose

• if all relevant considerations were taken into account + irrelevant ones excluded

• if the decision making process was fair

• if the outcome was within the range of rational decisions

"The court does not ask itself the question, 'Is this decision right or wrong?” - Laws LJ in R v Somerset County Council, ex p Fewings [1995]

Exceptions when judicial review can be used to examine merit

• where the decision was wholly unreasonable

  • evidence against it on relevant grounds

• human rights violations

Judicial review in practice

• public authority makes a decision which is challenged by someone it affects

• court examines procedure, considerations, rationality + legal limits of decision

• if unlawful a quashing order is requested (sets decision aside)

• authority must then remake the decision lawfully - the court does not substitute its own decision

Why the courts do not make the new decision

• courts lack the expertise for complex policies

  • ministers with officials + advisers are better

• courts should not second guess decision makers on important matters

• ministers have democratic legitimacy - judges do not

  • striking down on the content takes away from the elected ministers the matters that parliament has given them

• procedural review preserves ministerial discretion
  

mechanisms used for challenging administrative decisions

• judicial review

• tribunals

  • can reassess facts with specialist expertise

• ombudsmen

  • informal their recommendations are not legally binding

judicial review complements political accountability

Forms of accountability

• politics

  • ministers answer to parliament

  • limited as parliament cannot scrutinise every decision + the government’s majority

• administration

  • internal procedures + ombudsmen

• legal

  • courts + judicial review

• all complementary

"[Ministerial responsibility was] the mere shadow of a name... [The courts are] the only defence of the liberty of the subject against departmental
aggression."
— Farwell LJ, Dyson v Attorney-General [1911]

The Ultra Vires doctrine (theory)

• any instance of a parliamentary decision going beyond its powers is unconstitutional

• judicial review is the courts enforcing the limits that parliament intended (unexpressed intentions)

• consistent with parliamentary sovereignty + constitutional principles

• problems

  • courts can now review prerogative powers (non statutory) parliament never created these powers

  • grounds have evolved + parliament did not legislate these changes

  • ouster clauses existence + courts resisting them

The Common law theory

• judicial review is rooted in common law - not parliament’s unexpressed intentions

• parliament may be neutral on whether power can be exercised fairly / unfairly

• common law principles operate as external constraints on power

• advantages

  • grounds developed alongside court principles

  • common law applies to all public powers

  • courts enforce constitutional common law standards