What is Judicial Review?
Judicial review is the process by which the courts supervise the exercise of public power. It is concerned with the legality of decision-making, not its merits. The court does not substitute its own decision for that of the public body; rather, it assesses whether the decision was made lawfully.
Judicial review is available against any body exercising a public function, including government ministers, local authorities, tribunals, and regulatory bodies. The procedure is governed by Part 54 of the Civil Procedure Rules and requires the claimant to obtain permission before proceeding to a full hearing.
The claimant must have standing (locus standi) — a "sufficient interest in the matter" (s.31(3) Senior Courts Act 1981). In R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed [1982] AC 617, the House of Lords adopted a liberal approach to standing, considering it alongside the merits of the case.
Ground 1: Illegality
Illegality means that the decision-maker has not correctly understood the law that regulates their power and has therefore acted outside their legal authority (ultra vires). Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case) identified illegality as the first ground of review.
Forms of illegality include: acting ultra vires (exceeding statutory powers), error of law (misinterpreting the relevant statute), relevant/irrelevant considerations (taking into account matters that should not have been considered, or failing to consider relevant matters — Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223), improper purpose (using a power for a purpose other than that for which it was conferred — R v Secretary of State for Foreign Affairs, ex parte World Development Movement [1995] 1 WLR 386), and fettering of discretion (applying a rigid policy without considering individual circumstances — British Oxygen v Minister of Technology [1971] AC 610).
Ground 2: Irrationality (Wednesbury Unreasonableness)
Irrationality (or Wednesbury unreasonableness) means that the decision is so unreasonable that no reasonable authority could ever have come to it. The test from Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1 KB 223 sets a high threshold — the court will only intervene where the decision is "so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" (Lord Diplock in GCHQ).
Where fundamental rights are at stake, the courts apply a more intensive standard of review. In R v Ministry of Defence, ex parte Smith [1996] QB 517, the Court of Appeal held that the more substantial the interference with human rights, the more the court will require by way of justification. This has been further developed through the proportionality test under the Human Rights Act 1998.
Ground 3: Procedural Impropriety
Procedural impropriety encompasses two main categories: failure to observe statutory procedural requirements and breach of the rules of natural justice (or fairness).
The right to a fair hearing (audi alteram partem): A person affected by a decision has the right to be heard before the decision is made. The content of this right varies with the context — in some cases, an oral hearing is required; in others, written representations may suffice (Lloyd v McMahon [1987] AC 625).
The rule against bias (nemo iudex in causa sua): No one should be a judge in their own cause. The test is whether a fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility of bias (Porter v Magill [2002] 2 AC 357).
Legitimate expectation: Where a public body has made a clear and unambiguous representation that a certain procedure will be followed or a certain substantive benefit will be provided, it may be required to honour that expectation unless there is an overriding public interest justification for departing from it (R v North and East Devon Health Authority, ex parte Coughlan [2001] QB 213).
Remedies
The remedies available on judicial review are discretionary. The main remedies are:
Quashing order (formerly certiorari): Sets aside the unlawful decision.
Mandatory order (formerly mandamus): Compels the public body to perform a legal duty.
Prohibiting order (formerly prohibition): Prevents the public body from acting unlawfully.
Declaration: A statement of the legal position, which does not directly compel action but is usually respected.
Injunction: An order requiring or restraining specific conduct.
Damages: Not available as a standalone remedy in judicial review, but may be awarded alongside other remedies where a recognised cause of action exists (e.g., breach of the Human Rights Act 1998, s.8).
Key Cases
| Case | Key Principle |
|---|---|
| CCSU v Minister for the Civil Service (GCHQ)(1985) | Established the three grounds of judicial review: illegality, irrationality, procedural impropriety |
| Wednesbury Corporation(1948) | Irrationality test: decision so unreasonable no reasonable body could have reached it |
| Porter v Magill(2002) | Bias test: would a fair-minded observer see a real possibility of bias? |
| Ex parte Coughlan(2001) | Substantive legitimate expectation may be enforceable |
Exam Tips
Exam Tip
Structure your judicial review answer around the three GCHQ grounds. For each ground, state the legal test, cite the leading authority, and apply it to the facts. Don't forget to discuss standing at the outset and remedies at the end — these are often worth easy marks that students miss.
Common Mistake
Students often confuse judicial review with an appeal. Judicial review is about the LEGALITY of the decision-making process, not whether the decision was correct on the merits. The court does not substitute its own view — it sends the matter back for reconsideration if the decision was unlawful.