Public Law: Judicial Review

In the United Kingdom, where there is no written constitution and Parliament is theoretically supreme, Judicial Review stands as the ultimate constitutional safeguard. It is the process by which the High Court supervises the exercise of power by public bodies. Unlike an appeal, which reconsider the merits of a decision, judicial review is concerned with the legality of the decision-making process itself. This article provides a comprehensive deep dive into the grounds of judicial review—Illegality, Irrationality, and Procedural Impropriety—exploring the foundational logic of Wednesbury unreasonableness, the rise of "Legitimate Expectation," the sophisticated mechanics of "Ouster Clauses," and the constitutional earthquake that was Miller II.

1. Foundations & Constitutional Basis

Judicial Review is an inherent power of the High Court, rooted in the Rule of Law. The constitutional tension lies between Parliamentary Sovereignty and the Separation of Powers. As noted by Lord Diplock in the GCHQ case, "Judicial review is the means by which the executive is kept within the law." The court’s role is to ensure that public bodies act within the four corners of the power granted to them by Parliament (the doctrine of Ultra Vires).

The Source of Power vs The Nature of the Power

For a decision to be reviewable, the body must be a "public body." In R v Datafin [1987], the court held that even a private body (the Panel on Take-overs and Mergers) could be subject to review if it exercised "public law functions." This expanded the reach of the High Court beyond purely statutory bodies to include those exercising "de facto" governmental power.

2. The GCHQ Grounds of Review

The modern framework was established in CCSU v Minister for the Civil Service [1985] (the GCHQ case). Lord Diplock categorized the grounds into three heads:

I — Illegality

This is the "Ultra Vires" core. It includes:

• Excess of Power: Doing something the statute does not allow (Attorney General v Fulham Corp).
• Error of Law: Misinterpreting the legal test (Anisminic).
• Relevant/Irrelevant Considerations: Failing to consider what matters or considering what doesn't (Venables).
• Improper Purpose: Using power for a goal Parliament didn't intend (Congreve v Home Office).

II — Irrationality (Wednesbury Unreasonableness)

A decision is irrational if it is "so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it" (Wednesbury [1948]). This is a high threshold, designed to prevent the court from substituting its own opinion for that of the Minister. However, in cases involving Human Rights, the court applies "Anxious Scrutiny" (Smith [1996]), which has evolved toward the "Proportionality" test under the HRA 1998.

III — Procedural Impropriety

This covers the rules of "Natural Justice":

• The Right to a Fair Hearing: Audi alteram partem (Ridge v Baldwin).
• The Rule Against Bias: Nemo iudex in causa sua (Pinochet (No. 2)).
• Legitimate Expectation: If a body promises a procedure or benefit, it must honor it unless there is a compelling public interest not to (Coughlan).

3. Standing (Locus Standi)

A claimant must have a "sufficient interest" in the matter (s.31 Senior Courts Act 1981). This is interpreted liberally to allow for "Public Interest Litigation." In R v Inspectorate of Pollution, ex p Greenpeace (No 2) [1994], Greenpeace was granted standing because of its expertise and the fact that its members were affected. In R v Secretary of State for Foreign Affairs, ex p World Development Movement [1995], the court granted standing even though no individual was directly affected, because the issue (aid to the Pergau Dam) was of significant public importance and there was no other challenger.

4. Ouster Clauses & The Judiciary’s Defense

Parliament often tries to shield decisions from review using "Ouster Clauses" (e.g., "The decision shall not be questioned in any court of law"). The courts almost always find a way around these. In Anisminic Ltd v Foreign Compensation Commission [1969], the House of Lords held that if a body makes an error of law, its decision is a "nullity"—and an ouster clause cannot protect a decision that, in the eyes of the law, never existed.

5. Key Cases — Detailed Analysis

6. Remedies in Judicial Review

Remedies are discretionary. The court can refuse a remedy even if the claimant wins if it would cause administrative chaos.

• Quashing Order: Overturns the decision.
• Prohibiting Order: Stops a body from making an unlawful decision.
• Mandating Order: Compels a body to perform its duty.
• Declaration: A formal statement of the law.
• Injunction: Stops or starts an action.
• Damages: Only available if there is a separate private law cause of action (e.g., tort or breach of contract).

7. Critical Analysis & Academic Debate

Professor J.A.G. Griffith advocated for "Political Constitutionalism," arguing that the government should be held to account by Parliament, not unelected judges. He famously viewed judges as having a "conservative bias." Conversely, Lord Woolf defended "Legal Constitutionalism," viewing the judiciary as the only body capable of protecting individuals from executive dominance. Professor Aileen Kavanagh argues that the "Mirror Principle" under the HRA has blurred the lines between review and appeal, potentially infringing on Parliamentary Sovereignty.

8. Worked Example — Problem Scenario

ISSUE: Is the Minister's decision reviewable?

RULE: The grounds are Illegality (Improper Purpose & Relevant Considerations) and Irrationality.

APPLICATION: Funding a luxury club is arguably an "Improper Purpose" as it doesn't primarily aim to reduce emissions in the spirit of the Act (Congreve). Ignoring the peat bog report is a failure to consider a "Relevant Consideration" (Venables). The decision may also be Wednesbury irrational as the environmental cost outweighs the benefit.

CONCLUSION: A Quashing Order is highly likely.

9. Examiner Insights — How to Score Top Marks

Conclusion

Judicial Review is the "conscience" of the state. It is the legal mechanism that ensures that while the government may be powerful, it is never above the law. Mastering it requires a deep understanding of the delicate balance between judicial oversight and democratic legitimacy.