Judicial Review Law: Holding Public Power Accountable
Judicial review is a cornerstone of constitutional and administrative law, acting as the primary mechanism through which the judiciary oversees the actions and decisions of the executive and administrative branches of government. It embodies the principle of the separation of powers and the rule of law, ensuring that those who exercise public authority do so lawfully and fairly. For citizens and businesses affected by governmental decisions, understanding this legal recourse is critical.
It is emphatically the province and duty of the Judicial Department to say what the law is.
The Fundamental Purpose: Process Over Merits
A frequent misconception is that judicial review allows a court to overturn a public body’s decision simply because the judge disagrees with the outcome (the merits). Judicial review is not an appeal. Instead, the court’s focus is on the lawfulness of the decision-making process. The court asks: Did the public body act within its legal powers? Did it follow fair procedure? Was the decision so unreasonable that no rational public body would have made it?
⚠ Legal Expert Tip: If your goal is to challenge the facts or the conclusion of a decision, you likely need a statutory right of appeal, not judicial review. Judicial review concerns the ‘how’ (the process), while an appeal concerns the ‘what’ (the conclusion).
The Three Grounds for a Successful Challenge
The grounds for judicial review are typically grouped into three main categories, often referred to as the Wednesbury principles and subsequent developments:
| Ground | Definition |
|---|---|
| 1. Illegality | The public body failed to correctly understand or apply the law that governs its power. This includes acting outside its powers (ultra vires) or taking irrelevant factors into account. |
| 2. Irrationality | The decision is so unreasonable that no reasonable public body would have made it (a very high threshold). |
| 3. Procedural Impropriety/Unfairness | The public body failed to follow fair procedures or breached the rules of natural justice, such as the rule against bias. |
Caution: Human Rights Breach
A public body’s decision can also be challenged if it breaches human rights law, requiring the authority to uphold the protections under relevant human rights legislation.
The Judicial Review Procedure and Standing
Bringing a claim for judicial review is subject to strict procedural requirements. An applicant must have standing (sufficient interest) in the matter being challenged.
The Two-Stage Process
The procedure is typically divided into two crucial phases:
- The Permission (Leave) Stage: The applicant must first apply for permission to proceed, where the court screens out unmeritorious cases and assesses if the applicant has an ‘arguable case’.
- The Substantive Hearing: If permission is granted, the case proceeds to a full hearing to review the lawfulness of the decision.
Judicial review is often considered a remedy of last resort. A court will generally expect the applicant to have exhausted all other suitable alternative remedies—such as internal complaints procedures or statutory rights of appeal—before granting permission.
Available Remedies from the Court
If a court finds in favor of the applicant, it can issue a variety of orders:
- Quashing Order (Certiorari): Nullifies the unlawful decision, requiring the public body to make the decision again lawfully.
- Mandatory Order (Mandamus): Compels a public body to perform a specific statutory duty.
- Declaration: A formal statement by the court defining the legal rights and duties of the parties.
Case Insight: The Historical Foundation
In the United States, the foundational case of Marbury v. Madison (1803) established the authority of the Supreme Court to declare an act of the legislative or executive branch to be unconstitutional, thus solidifying judicial review as a key element of the American system of checks and balances.
Summary: Protecting the Rule of Law
Judicial review is an invaluable legal tool for individuals and organizations seeking to challenge decisions made by public bodies. Key takeaways to remember about judicial review include:
- Judicial review challenges the process of a decision, not its ultimate merits.
- The three grounds for challenge are Illegality, Irrationality, and Procedural Impropriety.
- A claimant must demonstrate sufficient standing and generally must have exhausted all alternative legal remedies.
- The typical remedy is a Quashing Order, which forces the public body to remake the decision lawfully.
★ Quick Guide to Judicial Review
What is Reviewed? The legality of a public body’s decision or action.
Key Principle: Lawfulness of the process (not the merits of the outcome).
Primary Grounds: Illegality, Irrationality, Procedural Impropriety.
Typical Result: Decision is quashed, forcing a lawful re-decision.
Frequently Asked Questions (FAQ)
Q: Is judicial review the same as an appeal?
A: No. An appeal is concerned with whether a decision was correct based on the evidence (the merits). Judicial review is concerned with whether the decision was lawful based on the procedure and powers used.
Q: Which public bodies can be challenged?
A: Judicial review can challenge decisions made by a wide range of bodies exercising public functions, including government ministers, departments, local authorities, chief constables, and sometimes even private bodies carrying out a public function.
Q: What is the time limit for bringing a claim?
A: Time limits are typically very short, often within three months of the decision or action being challenged. It is crucial to seek advice from a legal expert immediately after the decision is made.
Q: Can the court order the public body to make a different decision?
A: Generally, no. When a court quashes a decision, it merely sends the matter back to the public body. The public body must then re-take the decision, but
Please consult a qualified legal professional for any specific legal matters.