The Scope of Judicial Review in the United Kingdom: An Overview

Aas Muhmmad
Assistant Professor, Department of Law
The Islamia University of Bahawalpur
Email: [email protected]

Prof. Dr Rao Imran Habib

Dean, Faculty of Law
The Islamia University of Bahawalpur
Email: [email protected]

Usama Jamil
University Law College
University of the Punjab, Lahore
Email: [email protected]

Salman Mazhar
Advocate High Court
Email: [email protected]

Abstract

Judicial review refers to the process that authorizes the judiciary to scrutinize the actions and
decisions of public authority along with maintaining the check and balance, legality, propriety,
and procedural correctness of these actions. In the UK, Judicial review has a long history dating
back to the seventeenth century and with time it had become the essential tool for holding
government accountable and preserving citizens' rights. In recent years, there have been multiple
developments in the UK related to the concept of judicial review. These renewed changes have
been influenced by political and constitutional changes in recent times. For instance, the Brexit
process has brought some key issues about the part played by the judiciary in politics, the role of
the legislation, and the doctrine of trichotomy of power. It brings the question that to what extent
the judiciary has a role in examining the actions of the government and parliament. Similarly, in
the case of the COVID-19 epidemic, the new fold of judicial review opened how much judicial
review is important to scrutinize the action of public officials in case of emergency or crisis. In
light of the foregoing, this research paper provides a comprehensive and updated overview of the
major issues and a detailed discussion of judicial review in the UK. The paper will examine and
explore the prospects of this fundamental component of the British constitutional framework.

Keywords: Judicial Review in the UK, Scope and Limitations, Rule of Law, Parliamentary
Sovereignty

1 Introduction:

Judicial Review refers to the process that guarantees separation of power in a state as its scope
has its foundations in the concept of power separation among the three organs of the state. It
empowers court to hold any enactment and action, unenforceable and unconstitutional that is
inconsistent with the fundamental rights of the citizens. The two primary grounds for Judicial
Review are, “Supremacy of the Constitution with the requirement that ordinary law must
conform to the Constitutional Law” and “Theory of Limited Government”. Judicial Review also
entails Judicial Activism within its ambit (Gupta, 2016).

The primary objective of Judicial Review is to determine the legality of the challenged order and
statute. It brings constitution in conformity with the changing conditions and requirements of the
time. In the United Kingdom, the objectives of judicial review are to safeguard the fundamental
rights of the citizens and to maintain the ascendancy of constitutional law (Debbarma, 2022).
The validity of judicial review owes itself to the rule of law as well as to the requirement that
public entities operate in compliance with the law (Gupta, 2016). It is a mechanism to hold
public officials responsible for the exercise of public power, especially when actions are taken
that aren’t really in the hands of the political process. Judicial review is an excellent strategy to
review laws that are unconstitutional, harassing and unjust (Bridwell, 1980).

In Judicial Review, the judges examine the impugned decision and determine whether the public
body has followed the law properly. In addition to the claimant, who seeks an amendment or
reversal in the decision, and the defendants, other parties may intervene because they are the
affectees of the decision. Public bodies, such as Federal and local governments, must abide by
the law while making decisions and if they fail to do so, they are said to have acted illegally.
Meanwhile, public law refers to the corpus of law that regulates the actions of public entities and
bodies (Street, 2013).
The principles of Public Law ensure that public bodies of the state discharge their legal
obligations without abusing or misusing their authority and respect the sanctity of human rights
of those citizens that are affected by their actions. There are a number of options for those who
are harmed by the illegal actions or decisions of a public body (Bridwell, 1980). Most
commonly, the complaint procedures of public bodies are followed, and the right to appeal is
exercised before a tribunal. If a plaintiff can make another complaint to or about the public body,
or if they may appeal the decision, it is usually not required to invoke judicial review (Public
Law Project, 2018).

1.1 Origin of Judicial Review

The doctrine of judicial review originated in the United States of America in a landmark case
titled “Marbury vs. Madison” (Agrawal, 2022). However, Lord Coke’s historic decision in “Dr
Bonham vs. Cambridge University” in 1610 laid down the purview of judicial review in
England. Though the Constitution of US does not expressly provide the authority of Judicial
review, its Article III states that “the judicial power of the United States which includes,
original, appellate jurisdiction and also matter arising under law and equity jurisdiction
incorporates judicial power of the court”. Similarly, Article IV of the US Constitution provides
that, “All powers of Government are exercisable only by on the authority of the organ
established by the constitution”. Therefore, this article states that the “Constitution of the USA is
the supreme law of the land”. US Constitution does not categorically provides the concept of
Judicial review; rather, this concept is the result of judicial interpretation (Debbarma, 2022). The
US Supreme Court has the authority to prevent Congress from delegating legislative powers to
the executive institutions. The notion of “due process of law” established a balance in the
democracy of the United States by announcing the laws and actions of state institutions as illegal
and arbitrary (Gupta, 2016).

However, there is no written constitution in the United Kingdom. Thus, there was no concept of
judicial review in the United Kingdom initially and the principle of “Parliamentary Sovereignty”
governed the constitutional democracy in the country (Woolf, 2004). The Parliamentary
Supremacy in the UK encompasses popular will and the judiciary cannot review the actions of
the Parliament (Public Law Project, 2018).
The doctrine of Judicial review has also remained prevalent in the United Kingdom as well. Lord
Coke’s decision in “Dr. Bonham vs. Cambridge University” in 1610 laid the groundwork for
judicial review in UK (Street, 2013). However, in the case titled “City London vs. Wood”, Holt,
the Chief Justice stated, “An Act of Parliament can do no wrong, though it may do several things
that look pretty odd”. This remark established the idea of parliamentary supremacy, which says
that the court lacks jurisdiction to assess the constitutionality of legislative acts (Elliott &
Varuhas, 2017).

1.2 Historical Development of the Doctrine of Judicial Review in the UK

The roots of the doctrine of judicial review can be said to have originated from common law
tradition of the UK. The concept was initiated back in the seventieth century when the court
started to exercise a precise and limited review of the actions and decisions of public officials
and monarchs (Elliott & Varuhas, 2017). In later centuries i.e., the 17 th and 18th, the court
established the concept of "Prerogative writs". This concept entitled with appropriate legal
remedies that an individual could entertain against such actions of government which violate
their rights (Kirby & Kirby, 2004). The concept introduced writs of Habeas Corpus, Mandamus,
and Certiorari for the preservation and liberation of the rights of English citizens (Kavanagh,
2009).

The recent development in the doctrine of judicial review through case laws in the United
Kingdom’s courts has been analyzed. These developments expanded the scope of judicial review
and made it an essential part of the UK's constitutional system (Debbarma, 2022). There have
been multiple developments in the landmark case of “R v Electricity Commissioners, ex parte
London Electricity Joint Committee Co” (Jain, 2018). The court set out in this case that
administrative bodies could be subject to judicial review and their actions can be terminated and
their powers can be limited if they violate any rights and goes beyond the legal authority of that
person. Another key case “Anisminic Ltd v. Foreign Compensation Commission” also
introduced the development of the doctrine of judicial review in 1969 (Nason, 2014). The case
established the principle that any error of law is subject to judicial review. In the current world
scenario, the doctrine of judicial review is a vital tool for the public to make the government
official accountable and bound them to work within the scope and jurisdiction of their authority
and law (Gupta, 2016).
1.3 Parliamentary Sovereignty in the United Kingdom:
In England, the people are sovereign and the repository of all the powers. However, the people
have gradually confined the powers of the monarch and strengthened parliamentary supremacy
(Fenwick et al., 2017). Thus, powers are vested in the public at large and are exercised through
their elected representatives of the Parliament. Consequently, Parliament can make laws on any
subject, and the Constitution imposes no limitations on any lawmaking. So, the enactments and
the Act of Parliament are unchallengeable on any ground regardless of being unjust or contrary
to any other law (Agrawal, 2022).

Parliament has unlimited authority in the UK’s political system and there is no room for judicial
review of the acts of legislature (Elliott & Varuhas, 2017). Parliamentary legislation is also
referred to as Primary Legislation, while the subordinate and delegated legislation by the
executive is referred to as Secondary Legislation. Due to its administrative nature, secondary
legislation in UK is subject to judicial review (Jain, 2018).

1.4 Primary and Secondary Legislation:

As discussed earlier, there are two levels of legislative procedure in the United Kingdom: one is
primary legislation which consists of laws and enactments passed by the Parliament, and the
other is secondary legislation which includes rules, regulations, acts and directives of ministries
(Fenwick et al., 2017). Except in a few conditions where it infringes upon European Community
Law, the primary legislation is out of the purview of Judicial Review. Thus, following the
passage of the European Union Convention and Human Rights Act of 1998, Parliamentary
legislation came within the purview of Judicial review in some instances (Kavanagh, 2009).
However, the secondary legislation is within the purview of Judicial Review without any
exception. Secondary Legislation encompasses all administrative orders, directives, rules and
regulations and subordinate legislation (Kirby & Kirby, 2004). The court has the authority to
review any action and declare it ultra vires or unlawful.

2 Overview of the Grounds for Judicial Review in the United Kingdom:

There has been some ground set by the courts which are considered as legal principles on which
the court can review the actions and decisions of the public authorities and the executive
government (Gupta, 2016). These legal grounds are formulated to ensure that the process of
judicial review and decision-making process of public authority should be fair, lawful, and
within the power of that authority (Public Law Project, 2018). Based on the recent practice in the
court of the UK, these three main grounds have been finalized: illegality, irrationality, and
procedural irregularity.
2.1 Illegality

Judicial review, as its foremost task checks the legality of the action or decision. Based on that,
illegality is the first ground for judicial review and it fulfils the first aspect of doctrine by
checking the lawfulness of the actions of the person authorized (Craig & De Búrca, 2020).
Lawfulness analyzes if the person in authority exceeded his powers, if the action or decision is
ultra vires to public welfare, or if the action is contrary to the law of the land. For instance, if the
local council granted permission for construction to a person without following the due
procedure, then this action can be judicially reviewed on the ground of illegality of this action
(“R v. Secretary of State for the Environment, Transport and the Regions, ex parte Spath Holme
Ltd”).
2.2 Irrationality

The second aspect of judicial review is irrationality which follows the reasonableness of the
actions or decisions by the public authority (Bridwell, 1980). The action or decision can be
revoked if such action is so unreasonable and will not be acted by any other authority in ordinary
circumstances (Woolf, 2004). For instance, if the decision of the authority is made without
taking the relevant considerations into account and based on irregular considerations, then the
action can be challenged on the ground of irrationality (“Associated Provincial Picture Houses
Ltd v. Wednesbury Corporation”).
2.3 Procedural Impropriety

Procedural impropriety is the third ground for entitling the matter to judicial review. It makes the
decision-making power of public authority fair and appropriate (Bondy, 2003). An action or
decision of a public authority can be considered procedurally improper if the person in authority
fails to follow the required procedure of law or does not meet the principles of natural justice.
For insistence, if a person is not entitled to a fair hearing by the public authority and the decision
is made then the person can challenge the decision on the grounds of procedural impropriety (“R
v. Bow County Court, ex parte Pelling”).
2.4 Human Rights Act 1998

Pertaining to the three bases of judicial review as mentioned above, the Human Rights Act 1988
put forward the fourth ground for judicial review in the UK (Bondy, 2003). It talks about the
rights protected under the European Convention on Human Rights (ECHR) and relates to the
compatibility of a decision or action with these rights. The scope of judicial review in the UK has
been greatly influenced by the act called the Human Rights Act (Woolf, 2004). The Act makes
the ECHR a part of UK law and imposes an obligation on public bodies to uphold the rights
guaranteed by the Convention. Human rights abuses have now been added to the list of grounds
for judicial review as a result of this (Public Law Project, 2018). If any decision or action of the
public authority is incompatible with the ECHR then it will be considered unlawful and shall be
subject to judicial review (“Regina v. Secretary of State for the Home Department, Ex-parte
Daly”).

3 Scope of Judicial Review in the UK:

In the United Kingdom, the area of legislation governing the role of judicial review is
complicated and continuously changing. The judicial review enables the courts to check the
legality, propriety, and fairness of actions taken by public entities like government agencies,
local governments, and regulatory bodies (Craig & De Búrca, 2020). As mentioned above the
grounds for judicial review are well established and enhance the role of judicial review.
Nevertheless, the jurisdiction of judicial review is limited in certain areas of practice. As certain
decision-making processes, such as matters of political judgment or foreign policy, are regarded
as being outside the purview of judicial review (Bridwell, 1980). Additionally, courts typically
avoid overturning decisions made by expert bodies like regulatory agencies or scientific advisory
committees (Elliott & Varuhas, 2017).

The proportionality threshold, which has gained more significant influence in recent years, also
impacts the scope of judicial review (Gupta, 2016). According to this principle, the decision or
action must be appropriate, essential, and proportionate to its intended objective. Application of
the proportionality principle may limit public bodies' latitude and broaden the scope of judicial
review. Furthermore, the scope of judicial review has been immensely influenced by the UK's
membership in the European Union (EU). The courts are obligated to verify that national law is
consistent with EU law because EU law is immediately applicable in the UK. As a result,
transgressions of EU law have been added to the list of grounds for judicial review (Kirby &
Kirby, 2004). In general, judicial review is a complicated and developing area of law in the UK
that is influenced by several things, such as legislative requirements, case law, and constitutional
principles. Although the prerequisites for judicial review are well established, each case's
specific facts will determine the extent of the review (Nason, 2014).

The idea of judicial review has significantly altered the UK's constitutional framework (Fenwick
et al., 2017). Judicial review functions as an essential check and balance on the activities of the
executive and legislative branches of government as one of the primary foundations of the
separation of powers doctrine (Kavanagh, 2009). Courts are equipped to hold the government
responsible for upholding the law and safeguard individual liberties and rights through judicial
review. The power to contest the legitimacy of government action, including judgments made by
public officials and entities, is one of the main features of judicial review (Jowell & O’Cinneide,
2019). In the UK, this has led to several landmark cases, including the well-known “Council of
Civil Service Unions v. Minister for the Civil Service” ("GCHQ case"), in which the court held
that the government had no right to restrict the rights of civil servants to be members of a trade
union through the use of prerogative powers (Elliott & Varuhas, 2017). Such cases have
strengthened the notion that no one is above the law and served to build the UK's constitutional
landscape.

Importantly, judicial review was instrumental in the evolution of human rights related law in the
United Kingdom (Street, 2013). By integrating the European Convention on Human Rights into
UK law, the HRA increased people's legal protection against government abuses of their rights.
Judicial review has enabled courts to implement and interpret human rights law in a way that
tackles human rights violations effectively (Elliott & Varuhas, 2017). Despite its importance in
the UK's constitutional structure, judicial review has not always been without
controversy. According to some detractors, it can result in judicial activism and meddle with the
democratic process (Jowell & O’Cinneide, 2019). Others contend that the current judicial
review's reach is too constrained, which prevents the courts from effectively monitoring
governmental action (Craig & De Búrca, 2020). Despite these arguments, it is obvious that the
UK's constitutional system has been significantly and broadly impacted by judicial review.
Judicial review has contributed to preserving the delicate dichotomy of power between the
branches of government by upholding the rule of law, defending individual rights, and
guaranteeing that the government is answerable to the people (Gupta, 2016).
3.1 Recent Developments and Cases in Judicial Review:

In recent years, the law and practice of judicial review in the UK have undergone numerous
notable modifications. First of all, there has been a lot of discussion and controversy surrounding
the government's planned Judicial Review and Courts Bill. The goal of the law is to change the
criteria for judicial review and restrict the courts' authority to influence policy decisions, in
particular. The usefulness of judicial review as a tool for holding the government accountable
could be harmed, according to critics (Davis, 2021).

Second, there has been a considerable influence of Brexit on judicial review in the UK.
Regarding the place of EU law in the UK legal framework, in particular, the UK's exit from the
EU has sparked some difficult legal and constitutional issues. The Miller cases, which included
the exercise of the royal prerogative to initiate Article 50, and the most recent Good Law Project
case, which contested the government's granting of Covid-19 contracts, are just two examples of
the high-profile judicial review cases that resulted from this (“R (Miller) v Secretary of State for
Exiting the European Union”).

And last, the UK's use of judicial review has been significantly impacted by the Covid-19
pandemic. Many judicial review cases have been brought challenging various aspects of the
government's decision-making, and the government's reaction to the pandemic has come under
intense scrutiny and criticism (Croft, 2021). The validity of the lockdown guidelines, the
government's management of the epidemic in nursing homes, and the use of tax dollars to
support businesses during the pandemic have all been contested (Davis, 2021). These instances
have emphasized the crucial part that judicial review can play in keeping the government
responsible during times of crisis, but they have also prompted debate over the extent to which
judges should be allowed to intervene in public policy issues.
Several high-profile cases that caught the public's attention and altered how judicial review is
viewed and used have resulted in significant changes to the UK's judicial review system in recent
years (Elliott & Varuhas, 2017). The High Court ruled that the government's actions of detaining
asylum seekers who enter the UK without documentation in custody violated the common law
principle of liberty in the landmark case of “R (on the application of Refugee Action) v.
Secretary of State for the Home Department”. The Supreme Court and Court of Appeals later
confirmed this judgment, proving the value of judicial review in safeguarding fundamental rights
(Gupta, 2016).

The exercise of judicial review to contest how the government handled Brexit is another key
change. The Supreme Court held that the government had no right to use Article 50 of the Treaty
on the European Union without taking parliament into confidence in the case of “R (on the
application of Miller) v. Secretary of State for Exiting the European Union”. This choice has
broad ramifications because it effectively gave Parliament control over the terms of the UK's
European Union exit (Craig & De Búrca, 2020).

The government's actions in response to the COVID-19 outbreak has also been the subject of
various legal challenges. According to the High Court's ruling in “R (on the application of
Dolan) v. Secretary of State for Health and Social Care”, the government contravened Article 2
of the European Convention on Human Rights by not providing healthcare workers with
adequate personal protective equipment during the pandemic (Croft, 2021). The significance of
judicial review in holding the government accountable in emergencies is shown in this case.

Finally, it is important to note that the role of the judiciary in the UK's constitutional system has
been the subject of an expanding debate in recent years. Some opponents contend that because
the judicial review has grown in authority, judges are making decisions that should be made by
elected governments (Street, 2013). Others have argued that judicial review is a crucial tool for
protecting fundamental rights and reining in government excess (Nason, 2014).

It is worth noting that recent events and court judgements have highlighted the significance and
influence of judicial review in the UK's constitutional system (Jain, 2018). Judicial review is an
important instrument for holding governments responsible and promoting the rule of law, with
uses ranging from protecting basic rights to guiding the nation's reaction to Brexit and the
outbreak of COVID-19 (Agrawal, 2022).

4 Reforms to the UK’s Current Judicial Review System:

Some criticism and reform recommendations have been levelled at the UK's present judicial
review system. Some argue that the system is overly expensive, laborious, and complicated.
Others argue that judges are given too much leeway in deciding whether to allow judicial review,
which can lead to inconsistent outcomes (Woolf, 2004). One potential modification is the
introduction of a filter system in which cases are evaluated before proceeding to a full hearing. In
this case, a preliminary examination by a judicial panel would be required to determine if the
lawsuit had enough substance to proceed to a full hearing (Kavanagh, 2009). As a consequence,
fewer frivolous or meaningless cases would be brought, and court resources would be better
utilized.

Another possible option is to create a legislative code of principles to guide judicial review. This
would improve the clarity and consistency with which judicial review is implemented, as well as
ensure that the courts continue to do their constitutionally mandated duty (Fenwick et al., 2017).
There have also been calls for heightened transparency in the methods used to assess whether or
not to grant judicial review. This can involve disclosing the logic behind choices and providing
more specific guidance on the criteria used to decide authorization. The desire for efficient and
effective use of judicial resources must be balanced with the necessity for access to justice and
the preservation of individual rights in any reform of the UK's judicial review system. It remains
to be seen whether any substantial changes will be implemented shortly.
4.1 Conclusion:

The doctrine of judicial review in the United Kingdom has its roots in the common law tradition
and has been modified by past rulings that have cemented its function as a critical component of
the nation's constitutional system and expanded its reach. Judicial review permits courts to
analyze the legality, propriety, and fairness of government decisions and acts. A variety of
variables impact the intricacies and ever-changing scope of judicial review, including legislative
requirements, case law, and constitutional considerations. The incorporation of the European
Convention on Human Rights into UK law has had a profound influence on the emergence of
judicial review, providing individuals with more human rights protection and enabling them to
challenge government decisions. In recent years, the concept of proportionality has gained
importance, requiring a decision or action to be necessary, appropriate, and proportionate to the
goal it seeks to achieve, limiting the freedom of public authorities while broadening the scope of
judicial review.

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