Process of Judicial Review (AQA A-Level Law): Revision Notes
Process of Judicial Review
What is judicial review?
Judicial review is a legal process that allows citizens to challenge certain decisions made by government or other public bodies to determine whether they are reasonable and lawful. This mechanism upholds the fundamental principle that everyone is equal before the law, including public bodies and their officials.
The process enables citizens to scrutinize the actions of public authorities to ensure they act within their legal powers and follow proper procedures. Decisions made by lower courts, particularly Magistrates' Courts, can also be challenged through judicial review.
Which court hears judicial review cases?
Judicial review is carried out by the Queen's Bench Division of the High Court. This is the specialist court that examines whether public bodies have acted lawfully and reasonably when making decisions that affect individuals.
Three principles of judicial review
There are three main grounds on which a decision by a public body can be challenged under judicial review:
1. Illegality
A decision is illegal when the public body has made a mistake of law or has exceeded the powers that the law grants to it. This means the body has acted ultra vires (beyond its powers).
For example, if a local authority makes a decision it has no legal authority to make, this would be grounds for judicial review based on illegality.
2. Irrationality
A decision is irrational when it is so unreasonable that no reasonable public body would have made such a decision. This is also known as Wednesbury unreasonableness (explained further below).
The decision must be so outrageous that it defies logic or accepted moral standards. This is a high threshold to meet and requires extreme unreasonableness – not just questionable or arguably wrong decisions.
3. Irregularity
A decision involves procedural irregularity when the public body has failed to follow the correct procedure when making the decision. This might include:
- Failing to consult properly
- Not giving reasons for a decision
- Not following natural justice principles such as the right to a fair hearing
Remedies available under judicial review
If a judicial review is successful, the court can grant various remedies to address the unlawful decision.
Private law remedies
Under private law, remedies include:
- Injunction – a court order requiring a party to do or refrain from doing something
- Compensation – financial payment for loss suffered
Public law remedies
Under public law, the following remedies are available by court order:
1. Prohibition
This remedy prevents or prohibits the public authority from continuing with the unlawful decision or from performing the same act in the future. It is a forward-looking remedy that stops the public body from proceeding.
2. Certiorari
This remedy allows the High Court to quash (cancel or set aside) a decision that has already been made by the public body. It effectively nullifies the unlawful decision.
3. Mandamus
This remedy compels or forces a public body to perform a duty that it has failed to carry out. For example, it can require a public body to hear a case or argument that it has wrongfully refused to hear.
Key cases on judicial review
Associated Provincial Picture Houses v Wednesbury Corporation (1948)
Worked Example: The Wednesbury Unreasonableness Test
Facts: A cinema received a licence to open seven days a week. However, a condition was attached stating that on Sundays, no one under the age of 15 could be admitted. The cinema challenged this condition, arguing it was unfair.
Legal principle established: This landmark case established the Wednesbury unreasonableness test. Under this test, a decision will be deemed unreasonable and struck down if it was so unreasonable that no reasonable public body could have reached the same decision. This set the standard for the irrationality ground of judicial review.
Key Understanding: The test requires the decision to be extremely unreasonable – not just questionable or arguably wrong, but so outrageous that no sensible authority could have made it.
Council of Civil Service Unions v Minister for the Civil Service (1984)
Worked Example: Establishing the Three Grounds
Facts: The government banned workers at GCHQ (the UK's Government Communications Headquarters, part of the security service) from being members of trade unions. The civil service unions challenged this decision.
Legal principle established: Known as the GCHQ case, this decision comprehensively set out and summarized the three grounds or principles for judicial review: illegality, irrationality, and procedural irregularity.
Outcome: Although the government ultimately won the case on national security grounds, the case remains the leading authority on the principles of judicial review.
Assessment guidance
This content will be assessed in Paper 1 (A-Level Law). You may be asked to:
- Answer multiple-choice questions about judicial review procedures and remedies
- Examine and discuss the effectiveness of judicial review in extended answer questions
- Apply judicial review principles to problem scenarios involving challenges to public body decisions
When answering questions on judicial review, ensure you:
- Clearly identify which ground(s) of review apply (illegality, irrationality, or irregularity)
- Reference the Wednesbury test when discussing irrationality
- Specify which remedy would be appropriate in the circumstances
- Apply case law, particularly Wednesbury (1948) and GCHQ (1984), to support your answer
Evaluation point
Judicial review provides an essential balance between the power of the state (the 'establishment') and the rights of UK citizens. It acts as a check on executive and administrative power, ensuring that public bodies remain accountable and act within the law.
Without judicial review, citizens would have limited means to challenge unlawful government action, potentially leading to abuse of power. However, critics argue that judicial review can be expensive and time-consuming, and that judges may be encroaching on political decisions that should be left to elected representatives.
Remember!
Key Points to Remember:
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Judicial review is heard in the Queen's Bench Division of the High Court and allows citizens to challenge decisions by public bodies
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The three grounds for judicial review are: illegality (acting beyond legal powers), irrationality (Wednesbury unreasonableness), and irregularity (procedural unfairness)
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Remedies include: prohibition (preventing future action), certiorari (quashing a decision), and mandamus (compelling action)
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Wednesbury (1948) established the test for unreasonableness: a decision so unreasonable that no reasonable body could have made it
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GCHQ (1984) confirmed and summarized the three principles of judicial review