Judicial Review

Judicial review consists of a judge reviewing the lawfulness of a decision that has been made by the public body, such as the parliament in many countries. This essay will not only explore the history of judicial review but will also explore and ponder over current debates over the notion of Judicial Review. Moreover, according to Lord Brightman, “Judicial review” is not certainly an appeal from a decision but a review of the manner of the decision.[1] The sole purpose of judicial review is to ensure “public trust” by granting a fair and just system to the general public.

The judicial review primarily challenges in the U.K plays a pivotal role by challenging, “planning decisions, highways, compulsory purchase orders and EU environmental legislation. However, in general, it gets triggered when for example, executive body such as government ministers and departments fail to perform their due diligence about the human rights act 1998.[2]To add on, there are seven remedies that judicial review may offer, such as a quashing order, a prohibiting order, a mandatory order, a declaration, an injunction, an interim declaration and a substitutionary remedy.[3] In simple words, judicial review enforces the rule of law as it gives the right individuals to legally challenge public authorities when they have seemingly “abused their legal powers.” Many believe that judicial review came into force after the historic case of Entick v Carrington (1765) in the U.K., as it established the core principle that the public body must perform its “public functions” by the law.[4] However, in present times, “judicial review” has witnessed a downfall to some extent, as judges nowadays seem reluctant to apply the rulings of judicial review as their authority has been limited by the growth scale of the executive body in the U.K.

Thus, two core factors may influence “judicial confidence,” the two world wars played a pivotal role in the legal and political landscape. It encouraged more power to be given to the executive body and primarily discouraged “judicial activism.” The early years saw a rise in the “democratic legitimacy” of parliament, which could not be challenged by judges excessively. Thus, some also view that if judges are given more power to be able to question and to adopt “constitutionalist approach”. This would cause a major blow to the principle of “parliamentary supremacy”. [5] Therefore, many judges in the twentieth century, were aware of the growth of “democratic legitimacy”. They also emphasized over the narrative that whilst reviewing the decision of the public bodies, they must also balance it with the needs and satisfaction of the government. However, one must also not overlook a contributing rise of judicial review in the 1960s by Lord Denning and Lord Reid that occurred in the case of Ridge v Baldwin, that implied the key principles of “natural justice” that could be applied a wider range of government decisions.[6]

On the other hand, the HRA 1998 plays a pivotal role in the landscape of “judicial review” and through this aspect judges have been given the right to question the decision of the executive body if it is not in accordance with the principles of ECHR. This certainly has strengthened the judges’ role in political landscape. This level of discretionary powers being offered to the judges has also led to certain level of controversy. As both conservative and labor ministers have referred some judges as “unaccountable and unelected judges”. Thus, it can be said that government has been against the notion of “judicial review” as they believe that it is overlapping and can also have a detrimental effect over the notion of “parliamentary sovereignty”. Some also refer to it being frustrating as it has become situation where parliament debates issues and the judges overturn them.[7] This certainly has led to tension being rising between the judiciary and the executive, that may also have a detrimental impact over the rule of law in the country. Thus, it can also be said that the judiciary question the policies implied by the parliament as “unconstitutional” and “ “undemocratic”, as many believe that the role of the judiciary should be limited as they are an unelected public body. As many believe, they do uphold the interest of public representation since they are not elected. Therefore, they must not intervene with the matters of the parliament, that is not only considered supreme in the U.K constitution but also is the elected body representing the interest of the general public.

Furthermore, in an attempt to improve the existence of “judicial review”, civil procedure roles were introduced in 1999 in both England and Wales. It certainly enabled courts to deal with the cases more appropriately and justly in order to satisfy the general public. It was more practical to make the remedies available in a single of proceeding, which considered as “driving force” for these apparent reforms. This was done so that the judges especially in the administrative tribunals who are involved in “abuse of power”. Moreover, the common law rules are procedural fairness, wednesbury unreasonableness and illegality. However, the inclusion of HRA 1998, has revolutionized the scope of “judicial review”, as it has its very own distinct features as the claims under this act are based on “individual rights”.[8] Some have also witnessed more “judicial confidence” and more “public scrutiny”, whilst dealing with the cases that are related to the act itself. Judges themselves also argue that the proportionality principle under the HRA 1998, has been a more flexible and less prescriptive principle in terms of disclosure whilst taking into account the circumstances and the facts of the case. Hence, it can be ascertained yet again that the introduction of the Human rights act 1998, has certainly offered judges with a more flexible approach whilst determining whether public body has complied with their due diligence and has not undermined one’s rights that may go against the notion of the act itself. However, it can also be illustrated that such “flexibility” being offered to the judges does not satisfy the needs of some government ministers. As they believe that the judges have become more political and may undermine the principle of “parliamentary sovereignty”. This can also have a detrimental impact over the notion of “separation of powers” that is embedded within the U.K constitution.

Moreover, Lord Slynn has also explained in the review by Sergeant Walker, that the courts cannot determine whether the scheme enacted by the public is good or bad. The judges cannot also determine an error made by minister as ground of judicial review. The courts are only granted discretionary powers to determine whether the “discretionary powers” offered to do the ministers is “lawful”.[9] Henceforth, it can be said that the judges nowadays refrain from using their very own respective “discretionary powers” that is offered to them through judicial review, as it so some extent may cause confusion, despair and controversy between the judiciary and the executive. Thus, judiciary will certainly not intervene merely if the public authority made a wrong decision. Judges themselves feel more convinced with such kind of approach that draws the line between the role of judiciary and the public body elected by the general public. Thereby, it can be said that the role of judicial review has witnessed a restrictive approach where judges are not keen to exercise their discretionary solely on the issue of “error in law” incurred by the ministers.

However, the “Eynesbury unreasonableness” is considered as a grown where the court may be obliged to overturn a requirement as it sets out three key principles, such as no person could imagine that it lay with the power of authority, it might be considered as being conducted in bad faith and no reasonable authority in their right minds could have done this. This may seem as a just ruling, but it certainly has very strict requirements in order to overturn or quash public decisions. Moreover, twenty years later in the case of Padfield V minister of Agriculture (1968), the judge quashed a decision made by the public body as it was able to identify that minister made this decision based on his political gain. Thus, it can be said that even though the role of “judicial review” has witnessed its very own shortcomings, but at the same time where necessary in order to enforce ministers to abide by due diligence it is viewed as a reasonable ground in certain circumstances. Padfield was not only a creative decision but was also considered as controversial case. As Lord Greene himself stated that rather than going against public affair’s external matter, it must only ponder over the objects of the statute.[10] Therefore, it can be said that modern day judges prefer to be more objective and discreet rather than being involved in any form political or controversial agenda.

Nowadays, individuals do not believe that the “Judicial review” is the only ground to quash or hold administrative public bodies accountable. There are more techniques through which it can be done such as rather involving courts in such matter, the claimant can have a discussion or negotiation with public authorities, that to some extent may seem more practical for many. Parliament itself has enacted new methods in order to resolve administrative disputes. Ombudsmen schemes and parliaments select committees investigate maladministration or malpractice. Ombudsmen and auditors can carry out investigations in such an effective manner that courts and tribunals may not be able to do so.[11] Henceforth, it can be analyzed that parliament is more willing to take over the role of judiciary in order to maintain its sovereignty. Not only that Parliament also believes that they would be able to rule in more just decisions as they will be able to identify malpractice by the administrative government more effectively. This will also not cause any controversy as they themselves are an elected body.

The parliament itself has only authority to the judges to only overturn or quash decisions that have been enacted by secondary legislation. It can be subject to “judicial review”. However, even with secondary legislation, judges can be involved in deep political controversy. Therefore, judges should only decide on the content of law rather than being involved and investigating the purpose behind secondary legislation. Judges also after quashing secondary legislation through S.1 of the judicial Review and Courts Act 2022, should put the matter back in the hands of the parliament. This can certainly become an essence of dialogue between judicial and political branches of the U.K constitution.[12] It can be analyzed that judges nowadays are encouraged to not interfere with the purpose and matters of the parliament instead they must only ponder over the content of the statute enacted by the secondary legislation.

In conclusion whilst analyzing and in detail describing the purpose of judicial review. It can be ascertained that the role of judicial review has foreseen its very own shortcomings and its role has been restricted by the parliament. As elected bodies in the U.K believe that the unelected body such as the judiciary must not get involved in the matter of the parliament which is also considered supreme in the U.K constitution. Thus, judges have over the past utilized their discretionary powers but over the course of these especially in twentieth century, judicial review itself has lost its momentum through the decline of “judicial confidence” in such matters. However, judicial review still exists and has also foreseen its significance when handling the cases related to Human rights act 1998, where judges are responsible to hold the executive accountable if they not acted with due diligence and have not abused their powers by restricting individual rights of the general public. One can also analyze that judges in this modern era are reluctant to quash a decision made by the ministers with a mere mistake, rather through wednesbury principle, they have overwhelming requirements to quash the decision of the executive. Thus, it can be said that the role of judicial review has modified significantly over the course of years.

Bibliography

 Barnett H, Constitutional & Administrative Law (Routledge 2017)

Elliott M, Administrative Law: Text and Materials (2016)

Fortin M-F, The King Can Do No Wrong (Oxford University Press 2024)

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——, Public Law : Text, Cases, and Materials (Oxford University Press 2013)

Mills A, ‘Judicial Review Challenges to Secondary Legislation in England and Wales: Courting Controversy’ (2024) 45 Statute law review <https://academic.oup.com/slr/article/45/1/hmae010/7609884> accessed 11 April 2024

Sime S, A Practical Approach to Civil Procedure (Oxford University Press, USA 2007)

Sorabji J, ‘BOOK REVIEW: STUART SIME & DEREK FRENCH, BLACKSTONE’S GUIDE to the CIVIL JUSTICE REFORMS 2013’ [2013] Journal of Law and Jurisprudence

Webley L and Samuels H, Complete Public Law (2018)

[1] Stuart Sime, A Practical Approach to Civil Procedure (26th edn, OUP 2024) ch 49

[2] Stuart Sime, A Practical Approach to Civil Procedure (26th edn, OUP 2024) ch 49

[3] Neil Parpworth, Constitutional and Administrative Law (12th edn, OUP 2022) ch 15

[4] Andrew Le Sueur and Maurice Sunkin and Jo Eric Khushal Murkens, Public Law (5th edn, OUP 2023) ch 17

[5] Andrew Le Sueur and Maurice Sunkin and Jo Eric Khushal Murkens, Public Law (5th edn, OUP 2023) ch 17

[6] Andrew Le Sueur and Maurice Sunkin and Jo Eric Khushal Murkens, Public Law (5th edn, OUP 2023) ch 17

[7] Lisa Webley and Harriet Samuels, Complete Public Law (5th edn, OUP 2021) ch 14

[8] Mark Elliott and Jason N. E. Varuhas, Administrative Law (5th edn, OUP 2016) ch 13

[9] Timothy Endicott, Administrative Law (5th edn, OUP 2021) ch 2

[10] Timothy Endicott, Administrative Law (5th edn, OUP 2021) ch 2

[11] Timothy Endicott, Administrative Law (5th edn, OUP 2021) ch 2

[12] listair Mills, Judicial Review Challenges to Secondary Legislation in England and Wales: Courting Controversy, Statute Law Review, Volume 45, Issue 1, April 2024, hmae010, https://doi.org/10.1093/slr/hmae010