Fundamental principles of judicial review
What is judicial review?Judicial review is a vital part of the justice system in England and Wales.
It’s a type of legal case that provides a way for people to:
- assert their fundamental rights
- test the lawfulness of decisions made by the government and other public bodies
- seek a remedy when things go wrong
Importantly, judicial review cannot be used to challenge the substance (or merits) of the decision taken by a public authority. It’s limited to ruling on whether the decision was made following the proper process.
Judicial review is an important part of our constitutional balance of powers between the executive, parliament and judiciary.
It provides protection for individuals against state power, and ensures government and other public decision-makers are accountable.
The power of judicial review – hear from Joe and Lucy
In collaboration with our members, we’ve outlined some fundamental principles that underpin judicial review:
- Maintaining checks and balances
- Judicial independence
- Accessibility and affordability
- Effective remedies
1. Maintaining checks and balances
The fundamental purpose of judicial review is to determine whether public authorities are acting in accordance with the laws made by parliament.
It provides protection for individuals against state power, and ensures government, public bodies and regulators can all be held accountable.
Without an effective system of judicial review, other fundamental constitutional principles, such as parliamentary sovereignty, will be weakened.
Its essential contribution to upholding the rule of law and principles of democracy within the broader constitutional system must not be diminished.
Guaranteeing that it stays an effective and accessible mechanism for ensuring the accountability of government, public bodies and regulators (according to the laws made by parliament) must be a cornerstone of any possible reform.
2. Judicial independence
Judicial review brings law and politics into close contact. A mature democracy must be prepared to deal with these tensions.
Judges must be free to exercise their duties in judicial review:
- without fear or favour
- away from political considerations and criticism
- without being assumed to have an agenda beyond their role in upholding the law
This allows them to fulfil their constitutional role, and effectively enforce the rights of individuals and organisations.
Judicial review focuses on the decision-making of:
- public bodies
A judicial review case addresses whether these bodies use their powers in accordance with the law. As such, judicial review must be available to all who are affected by the decisions of these bodies.
This includes citizens and non-citizens, when relevant, such as immigration cases or when a company has business interests in the UK.
Organisations such as charities or trade unions should also be able to act, within reasonable limits, in the interests of the people, bodies, or issues they represent.
They should be able to do this by initiating or intervening in judicial review claims.
4. Accessibility and affordability
There should not be excessive procedural hurdles which act as a barrier to bringing a claim.
The need for prompt resolution and sufficient opportunity to pursue a claim must be appropriately balanced.
To be fully accessible, bringing a judicial review claim must also be affordable.
Where individuals lack their own financial means, adequate levels of legal aid must be provided to ensure equal access to the courts to enforce their rights.
Costs awards and court fees must not be so punitive or unduly burdensome that they prevent claims being brought.
As judicial review looks at decisions made by public bodies, it often touches on decisions which may be political or seen as political.
As the remit of the state has expanded, so too has the breadth of decisions subject to judicial review.
It is not the role of courts to second-guess political decisions, and judicial review should not encroach upon the legitimate use of state power. Judges are sensitive to this and they can, and routinely do, make decisions about what is outside the scope of judicial review.
However, there should be no artificial or inconsistent restrictions upon the type of decisions that can be reviewed.
Where there are legal questions, the court should rightly be able to decide that these and certain issues, or categories of issues, should not be precluded from judicial review.
Given the imbalance of power between individuals and the state, it’s important that people have a meaningful ability to challenge decisions which affect their lives and legal rights, to ensure these have been made lawfully.
For judicial review to operate effectively as a remedy of last resort, there must be adequate alternative mechanisms in place for people to assert their rights.
6. Effective remedies
The circumstances of judicial review cases are wide-ranging. No two cases are the same, so what will be a fair outcome in one will not necessarily be so in another.
Judges must have a range of remedies at their disposal, and the discretion to award these, to ensure that justice is meaningfully done.