The Process of Judicial Review (OCR A-Level Law): Revision Notes
The Process of Judicial Review
What is judicial review?
Judicial review is a legal mechanism used to uphold human rights and ensure accountability within the justice system. It reinforces the fundamental principle that everyone is equal before the law, meaning that public authorities and their representatives must act within legal boundaries and can be held to account when they fail to do so.
This process allows decisions made by lower courts, particularly Magistrates' Courts, to be challenged when there are concerns about their legality or fairness. Judicial review serves as an important safeguard against unlawful or unreasonable actions by public bodies, protecting individual rights and maintaining the rule of law.
The principle of equality before the law is fundamental to judicial review. It ensures that no person or public body is above the law, and all must comply with legal requirements and can be challenged when they fail to do so.
Where is judicial review carried out?
Judicial review proceedings take place in the Queen's Bench Division of the High Court. This is one of the three divisions of the High Court and has specific jurisdiction over matters involving the supervision of lower courts and public bodies.
The Queen's Bench Division handles a wide range of matters beyond judicial review, including civil disputes and appeals from lower courts, but its supervisory jurisdiction over public bodies is a key function.
Principles of judicial review
When bringing a claim for judicial review, there are three main grounds on which a decision by a public body can be challenged. Understanding these principles is essential for recognizing when judicial review may be appropriate.
The Three Grounds for Judicial Review
All judicial review claims must be based on at least one of these three principles:
- Illegality - acting beyond legal powers or making errors of law
- Irrationality - decisions so unreasonable no reasonable body could make them
- Irregularity - failing to follow proper procedures
These grounds were authoritatively established in the GCHQ case (1984) and form the foundation of modern judicial review.
Illegality
Illegality occurs when a public body makes a decision that involves a mistake of law or acts beyond the powers granted to it by law. This principle ensures that public authorities only exercise the powers Parliament has given them and do so correctly.
A decision will be considered illegal if the public body has:
- Misinterpreted or misapplied the law
- Acted outside the scope of its legal authority (ultra vires)
- Failed to consider relevant legal requirements
- Taken into account irrelevant factors when making the decision
Irrationality
Irrationality, also known as Wednesbury unreasonableness, applies when a public body makes a decision that is so unreasonable that no reasonable public body could have arrived at the same conclusion. This is a high threshold to meet, as courts generally respect the decision-making discretion of public authorities.
Understanding the High Threshold
The test for irrationality requires the decision to be so outrageous or absurd that it defies logic or accepted moral standards. Minor errors in judgment or decisions that others might disagree with are not sufficient to establish irrationality. This high bar ensures courts don't simply substitute their own judgment for that of public bodies.
Irregularity
Irregularity, also known as procedural impropriety, arises when a public body fails to follow the correct procedure when making a decision. This principle emphasizes that how a decision is made is just as important as the decision itself.
Irregularity can include:
- Failing to follow statutory procedures required by law
- Breaching natural justice principles, such as the right to a fair hearing
- Not giving affected parties an opportunity to present their case
- Bias or the appearance of bias in decision-making
Remedies available through judicial review
If a judicial review claim is successful, the court can grant various remedies to address the unlawful decision or action. These remedies fall into two categories: private law remedies and public law remedies.
Private law remedies
Under private law, remedies such as injunctions (court orders requiring someone to do or stop doing something) or compensation (damages for loss suffered) may be available to the claimant.
Public law remedies
Under public law, the High Court can issue specific court orders known as prerogative orders. There are three main types:
Prohibition
A prohibition order prevents or prohibits a public authority from continuing with a particular decision or from carrying out the same unlawful act in the future. This remedy is forward-looking, stopping the public body from acting unlawfully going forward.
Worked Example: Prohibition Order in Practice
If a local authority planned to hold a hearing without giving proper notice to affected parties, a prohibition order could prevent that hearing from taking place until proper procedures are followed. This protects the rights of parties who would otherwise be denied proper procedural fairness.
Certiorari (quashing order)
A certiorari order allows the High Court to quash (cancel or set aside) a decision that has already been made by a public body. This remedy looks backward, removing the legal effect of an unlawful decision.
Once a decision is quashed, it is treated as if it never existed, and the public body must reconsider the matter, usually applying the correct legal principles or procedures.
Mandamus (mandatory order)
A mandamus order compels a public body to perform a specific duty that it has unlawfully refused to carry out. This remedy is used when a public authority has failed to act when it had a legal obligation to do so.
Worked Example: Mandamus Order in Practice
If a public body refused to hear a case or consider an application when it was legally required to do so, a mandamus order could force it to fulfill that duty. For instance, if a licensing authority refused to consider a properly submitted application without valid grounds, a mandamus order would compel them to consider it.
Key cases on judicial review
Two landmark cases have shaped the modern law of judicial review in England and Wales. Understanding these cases is crucial for grasping how judicial review operates in practice.
Essential Case Law
The following two cases are foundational to understanding judicial review and are frequently cited in legal proceedings. They establish the key principles and tests that courts apply today.
Associated Provincial Picture Houses v Wednesbury Corporation (1948)
This case established the Wednesbury unreasonableness test, which remains the standard for determining whether a decision by a public body is irrational.
Legal principle established:
A decision by a public body will be deemed unreasonable and can be struck down if no reasonable public body could have reached the same decision. This test sets a high bar for intervention, recognizing that courts should not simply substitute their own judgment for that of the decision-maker unless the decision is truly outrageous.
Significance:
The Wednesbury test has become synonymous with the irrationality ground of judicial review. It provides a clear framework for judges to assess whether administrative decisions have crossed the threshold into unreasonableness, while still respecting the proper role of public bodies in making policy and administrative decisions.
Council of Civil Service Unions v Minister for the Civil Service (1984)
Known as the GCHQ case, this landmark decision established the modern framework for judicial review by identifying the three main principles upon which decisions can be challenged.
Legal principle established:
The House of Lords confirmed that there are three grounds for judicial review: illegality, irrationality, and procedural impropriety (irregularity). This case provided the authoritative classification of the principles that continues to guide judicial review applications today.
Significance:
The GCHQ case modernized judicial review law by clearly articulating its theoretical foundations. It demonstrated that even decisions involving national security could potentially be subject to judicial review, though the court ultimately held that the particular decision in question was not reviewable due to national security considerations.
Role of the European Court of Human Rights
While judicial review takes place in domestic courts, the European Court of Human Rights (ECtHR) plays an important role in the broader enforcement of human rights, including those protected under UK law through the Human Rights Act 1998.
Location and composition
The ECtHR is based in Strasbourg, France, and comprises judges representing various European states. It is important to understand that many of these states are not part of the European Union, and the court itself is not an EU institution. Instead, it operates under the Council of Europe, a separate international organization focused on human rights.
Common Misconception: ECtHR and the EU
The European Court of Human Rights is frequently confused with EU institutions, but it is entirely separate. The ECtHR operates under the Council of Europe (47 member states), while the EU has only 27 member states. Countries can be members of the Council of Europe without being EU members.
Brexit and continued adherence to the ECHR
Following the UK's departure from the European Union, the EU-UK Trade and Cooperation Agreement (colloquially known as 'Brexit') contains provisions that secure the UK's continued commitment to the European Convention on Human Rights. This means that despite leaving the EU, the UK remains bound by the Convention and subject to the jurisdiction of the ECtHR.
How the court operates
The ECtHR functions according to several key principles:
Judicial independence: Judges act independently and impartially, not representing the interests of their own countries. This independence is crucial for maintaining the court's credibility and ensuring fair decisions.
Panel structure: Cases are typically heard by a panel of seven judges. However, before a full hearing takes place, a preliminary panel of three judges assesses whether the case has sufficient merit to proceed. This filtering process ensures that only viable claims receive full consideration.
Powers and remedies: When the ECtHR finds that a Member State has breached an Article of the Convention, it has the power to award compensation or other 'just satisfaction' to the complainant. This might include financial compensation for harm suffered or recognition of the violation.
Limitations of the court's authority
Despite its important role, the ECtHR has significant limitations in enforcing its judgments. The court relies heavily on the cooperation of Member States to comply with its decisions voluntarily.
Critical Limitation of the ECtHR
The ECtHR cannot force a state to change its domestic law even when such changes are necessary to remedy a Convention violation. This means that while ECtHR judgments carry moral and legal weight, their practical effectiveness depends on the willingness of states to implement them.
States generally comply out of respect for international law and their treaty obligations, but enforcement mechanisms are relatively weak compared to domestic courts.
Key Points to Remember:
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Judicial review is conducted by the Queen's Bench Division of the High Court to ensure public bodies act lawfully and protect human rights
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There are three grounds for challenging decisions: illegality (acting beyond legal powers), irrationality (Wednesbury unreasonableness), and irregularity (procedural failures)
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Three public law remedies are available: prohibition (stops future unlawful acts), certiorari (quashes past decisions), and mandamus (forces a body to act)
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Wednesbury (1948) established the unreasonableness test for irrationality, while the GCHQ case (1984) confirmed the three principles of judicial review
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The European Court of Human Rights in Strasbourg can award compensation for Convention breaches but relies on state cooperation and cannot force domestic law changes