Judicial Review – Scope, Procedure, and Remedies:
JR is conceptually different from an appeal against a decision, as the merits of a decision, as a matter
of public policy, are not determined, rather the lawfulness/the manner in which the decision was
reached is decided instead. JR also has two main facets: supervising exercise of powers granted to
public bodies and enhancing the efficiency of public administration.
Strong JR = of primary legislation is unavailable due to parliamentary sovereignty, ‘no person or
body’ can ‘override or set aside the legislation of Parliament’ (Dicey)
Weak JR = of administrative action is available to supervise the exercise of public functions,
challenging the exercise of authority of an individual, ensuring executive branch officials work within
the limits of their power. The separation of powers in action – The Judge over Your Shoulder. In
Djokovic’s case, the court looked at whether the immigration minister’s decision was unlawful. There
must be exhaustion of appeals rights before a claim for JR.
Appeals: a statutory creation (no common law right), the court can substitute its view on
both factual and legal issues. Appellant courts can re-open issues.
Review: exercised as part of the court’s inherent jurisdiction, to determine the first instance
court had acted lawfully.
JR: Supervising public-authority decision-making
(i) Review, Not Appeal:
Public authorities must abide by administrative law, which provides rules specifically for public body
decision-making, protecting the principle of government under the law. The courts rely upon the
principles of natural justice to ensure broader values of fairness are embodied in public decision-
making. JR is not concerned with the merits of the decision in question, as this is a concern for
primary decision-makers. JR addresses procedural irregularities/questions of whether a power was
in the remit of a public body (ultra vires).
Review v appeal’s distinction was considered in R v Chief Constable of North Wales Police, ex parte
Evans, where Evans challenged his dismissal by JR, the Law Lords accepted that the Chief Constable
was entitled to consider Evans’ home life impacted on his fitness to serve in the police, but taking
the decision without providing Evans with a hearing was unfair. The court did not substitute their
assessments of the merits for that of the Chief Constable, but the weakness in the way the decision
was reached provided a reason as to why it couldn’t stand.
Lord Brightman said, ‘Judicial review is concerned, not with the decision, but the decision-making
process. Unless that restriction on the power of court is observed, the court will in my view, under
the guise of preventing the abuse of power, be itself guilty of usurping power’.
Since ex parte Evans, public bodies’ ability to based decisions on the private lives of those affected
by them has been curtailed. In R (Lord Carlile) v Secretary of State for the Home Department [2015]
Lord Sumption recognised, ‘any arguable allegation that a person’s Convention rights have been
infringed is necessarily justiciable’.
Judicial Review and the Courts’ ‘Institutional Capacity’:
Lord Bingham, in R (Corner House Research) v Director of the Serious Fraud Office [2008] asserted,
‘the issue is not whether his decision was right or wrong, nor whether the court agrees with it, but
whether it was a decision which the Director was lawfully entitled to make’. Professor Jeffrey Jowell,
,‘Of Vires and Vacuums: The Constitutional Context of Judicial Review’ [1999] argues that broadening
JR would exceed the ‘institutional capacity’ of the courts.
(ii) The Benefits of JR: Securing the Rule of Law and Good Governance
From 1960s onwards, JR has increased in significance, with Lord Mustill’s dissenting speech in ex
parte Fire Brigades Union highlighting the weaknesses in parliamentary scrutiny of public bodies, as
well as asserting JR was necessary to ensure effective oversight of executive action: ‘To avoid a
vacuum in which the citizen would be left without protection against a misuse of executive powers
the courts have had no option but to occupy the dead ground in a manner and in areas of public life,
which could not have been foreseen 30 years ago’.
Parliament has been weakened due to the dominant position of the governing party, other demands
on parliamentary time restricting scrutiny, and difficulties MPs face in obtaining certain information
from government. Lord Mustill then justified the scrutiny of public decision-making by the courts:
‘The executive carries of the administration of the country in accordance with the powers conferred
on it by law. The courts interpret the laws and see that they are obeyed. This requires the courts to
step into the territory which belongs to the executive, not only to verify that the powers asserted
accord with the substantive law created by Parliament, but also that the manner in which they are
exercised conforms with the standards of fairness which Parliament must have intended’.
JR appears to be the embodiment of the Diceyan idea of confining the executive to limit the scope of
government activity. Executive actors liken being subject to JR, ‘likened to being struck by lightning –
random, unpredictable and destructive’ (T. Arvind and L. Stirton, ‘The Curious Origins of Judicial
Review’ (2017)). The courts tackle malfunctioning areas of public administration, improving overall
performance. Judges’ expertise may be limited, such as in resource allocation, so JR is restricted,
shown in R v Cambridge Health Authority, ex parte B [1995].
Under the Higher Education Act 2004, the Office of the Independent Adjudicator is a new public
body to assess student complaints over course provision, with its decisions regularly reviewed. F.
Mitchell, ‘The OIA and Judicial Review: Ten Principles From Ten Years of Challenges; (OIA, 2015) p.
11 concluded that JR has ‘provided useful and important clarification on the OIA’s role… this has
been immensely valuable, if a little painful at times’. Noticing this standard-raising if decision-making
requires an analysis of administrative law as an aggregate of many decisions, and its ‘radiating’ effect
on decisions not before the courts’ (R. Cranston, ‘Reviewing Judicial Review’ in G. Richardson and H.
Genn (eds), (OUP, 1994) 45, at p. 74).
Civil servants attending the National School of Government receive defensive training on potential JR
of government actions, to ensure they are ‘better placed to advise on and make legally sound
decisions,’ via Government Legal Department, The Judge Over Your Shoulder – A Guide to Good
Decision Making (5th ed., TSO, 2016) p, 5.
Harlow and Rawlings compared JR’s role to a system of traffic lights controlled by the courts with the
aim of permitting ‘good governance’ to flow. The Red Light is when the courts act as a check on
administrative power, the primary purpose of administrative law is to keep the power of
government within their legal bounds, so as to protect the citizen against their abuse (a traditional
liberal perspective), and the Green Light is when the law facilitates the administration, the role of
administrative law is not to act as a counterweight to the interventionist state, but to facilitate
legitimate government action. (a social-welfare perspective).
, (iii) Judicial Review and Parliamentary Sovereignty:
Judges deciding cases, such as British Railways Board v Pickin [1974], accepted the courts lack the
legitimacy to challenge the content of Acts of Parliament, or to consider alleged irregularities in the
manner of their enactment.
Even when the Merchant Shipping Act 1998 provisions were disapplied when they conflicted with EU
law in R v Secretary of State for Transport ex parte Factortame (No. 2) [1991]), Lord Bridge
emphasised Parliament placed self-imposed limits upon entering the EU, and that courts remain
faithful to the European Communities Act 1972. If Parliament wants to exclude JR of certain public
functions completely, the courts insisted Parliament would need to enact an ‘ouster clause’ (R (Cart)
v Upper Tribunal (2012)). However, if such clauses are considered a threat to administrative justice,
the court will attempt to circumvent them (R v (Privacy International) Investigatory Powers Tribunal
[2019).
The UK Government have introduced legislation that imposes general restrictions on JR, with The
Criminal Justice and Courts Act 2015, with Lord Neuberger arguing caution with these reforms, giving
they ‘come from the very body which is at the receiving end of JR’.
(iv) Judicial Review and the Separation of Powers:
Tensions are inevitable as JR ‘requires the courts to step into the territory which belongs to the
executive’ (R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995]
(Lord Mustill). JR discontent grew to a point where the Ministry of Justice’s Lord Chancellor Chris
Grayling saying ‘the use of unmeritorious applications for judicial review to delay, frustrate or
discourage legitimate executive action’. 10 years later, Robert Buckland said, to similar effect, ‘it is
frankly being abused in order to conduct politics by other means’.
Robert Stevens identified a collective crisis in confidence as to the legitimacy of their challenging of
actions of elected governments: ‘As Britain moved from oligarchy to democracy, and as
utilitarianism and then liberalism became the fashionable order of the day, the Reform Acts of 1832,
1867 and 1884 made it appear increasingly inappropriate for the judiciary to intrude into the public
law arena’ (p. 335, ‘Government and the Judiciary’).
(v) Judicial Review Across the UK’s Jurisdictions:
The Independent Review of Administrative Law noted in 2021 that ‘there are substantial similarities
in judicial review in all three United Kingdom jurisdictions: in the understanding of its constitutional
function and purpose; in the grounds of review; in procedures, including the rules on standing; and
in the available remedies’.
The courts have developed special rules over how JR operates when treating democratically elected
devolved legislatures as public bodies. In Scotland and Northern Ireland, JR is a devolved matter, and
the Scottish Parliament and Northern Ireland Assembly could increase the distinctive nature of JR in
both jurisdictions. Differences that do exist do not, at present, change the substantive nature of JR.
The Source of the Judicial Review Jurisdiction:
There are two theoretical explanations: the doctrine of ultra vires and the common law theory.
(i) Ultra Vires Doctrine:
JR can be questioned on the basis of lack of democratic legitimacy of the courts, and this
undermined the courts’ willingness to use their powers to supervise public decision-making for much
JR is conceptually different from an appeal against a decision, as the merits of a decision, as a matter
of public policy, are not determined, rather the lawfulness/the manner in which the decision was
reached is decided instead. JR also has two main facets: supervising exercise of powers granted to
public bodies and enhancing the efficiency of public administration.
Strong JR = of primary legislation is unavailable due to parliamentary sovereignty, ‘no person or
body’ can ‘override or set aside the legislation of Parliament’ (Dicey)
Weak JR = of administrative action is available to supervise the exercise of public functions,
challenging the exercise of authority of an individual, ensuring executive branch officials work within
the limits of their power. The separation of powers in action – The Judge over Your Shoulder. In
Djokovic’s case, the court looked at whether the immigration minister’s decision was unlawful. There
must be exhaustion of appeals rights before a claim for JR.
Appeals: a statutory creation (no common law right), the court can substitute its view on
both factual and legal issues. Appellant courts can re-open issues.
Review: exercised as part of the court’s inherent jurisdiction, to determine the first instance
court had acted lawfully.
JR: Supervising public-authority decision-making
(i) Review, Not Appeal:
Public authorities must abide by administrative law, which provides rules specifically for public body
decision-making, protecting the principle of government under the law. The courts rely upon the
principles of natural justice to ensure broader values of fairness are embodied in public decision-
making. JR is not concerned with the merits of the decision in question, as this is a concern for
primary decision-makers. JR addresses procedural irregularities/questions of whether a power was
in the remit of a public body (ultra vires).
Review v appeal’s distinction was considered in R v Chief Constable of North Wales Police, ex parte
Evans, where Evans challenged his dismissal by JR, the Law Lords accepted that the Chief Constable
was entitled to consider Evans’ home life impacted on his fitness to serve in the police, but taking
the decision without providing Evans with a hearing was unfair. The court did not substitute their
assessments of the merits for that of the Chief Constable, but the weakness in the way the decision
was reached provided a reason as to why it couldn’t stand.
Lord Brightman said, ‘Judicial review is concerned, not with the decision, but the decision-making
process. Unless that restriction on the power of court is observed, the court will in my view, under
the guise of preventing the abuse of power, be itself guilty of usurping power’.
Since ex parte Evans, public bodies’ ability to based decisions on the private lives of those affected
by them has been curtailed. In R (Lord Carlile) v Secretary of State for the Home Department [2015]
Lord Sumption recognised, ‘any arguable allegation that a person’s Convention rights have been
infringed is necessarily justiciable’.
Judicial Review and the Courts’ ‘Institutional Capacity’:
Lord Bingham, in R (Corner House Research) v Director of the Serious Fraud Office [2008] asserted,
‘the issue is not whether his decision was right or wrong, nor whether the court agrees with it, but
whether it was a decision which the Director was lawfully entitled to make’. Professor Jeffrey Jowell,
,‘Of Vires and Vacuums: The Constitutional Context of Judicial Review’ [1999] argues that broadening
JR would exceed the ‘institutional capacity’ of the courts.
(ii) The Benefits of JR: Securing the Rule of Law and Good Governance
From 1960s onwards, JR has increased in significance, with Lord Mustill’s dissenting speech in ex
parte Fire Brigades Union highlighting the weaknesses in parliamentary scrutiny of public bodies, as
well as asserting JR was necessary to ensure effective oversight of executive action: ‘To avoid a
vacuum in which the citizen would be left without protection against a misuse of executive powers
the courts have had no option but to occupy the dead ground in a manner and in areas of public life,
which could not have been foreseen 30 years ago’.
Parliament has been weakened due to the dominant position of the governing party, other demands
on parliamentary time restricting scrutiny, and difficulties MPs face in obtaining certain information
from government. Lord Mustill then justified the scrutiny of public decision-making by the courts:
‘The executive carries of the administration of the country in accordance with the powers conferred
on it by law. The courts interpret the laws and see that they are obeyed. This requires the courts to
step into the territory which belongs to the executive, not only to verify that the powers asserted
accord with the substantive law created by Parliament, but also that the manner in which they are
exercised conforms with the standards of fairness which Parliament must have intended’.
JR appears to be the embodiment of the Diceyan idea of confining the executive to limit the scope of
government activity. Executive actors liken being subject to JR, ‘likened to being struck by lightning –
random, unpredictable and destructive’ (T. Arvind and L. Stirton, ‘The Curious Origins of Judicial
Review’ (2017)). The courts tackle malfunctioning areas of public administration, improving overall
performance. Judges’ expertise may be limited, such as in resource allocation, so JR is restricted,
shown in R v Cambridge Health Authority, ex parte B [1995].
Under the Higher Education Act 2004, the Office of the Independent Adjudicator is a new public
body to assess student complaints over course provision, with its decisions regularly reviewed. F.
Mitchell, ‘The OIA and Judicial Review: Ten Principles From Ten Years of Challenges; (OIA, 2015) p.
11 concluded that JR has ‘provided useful and important clarification on the OIA’s role… this has
been immensely valuable, if a little painful at times’. Noticing this standard-raising if decision-making
requires an analysis of administrative law as an aggregate of many decisions, and its ‘radiating’ effect
on decisions not before the courts’ (R. Cranston, ‘Reviewing Judicial Review’ in G. Richardson and H.
Genn (eds), (OUP, 1994) 45, at p. 74).
Civil servants attending the National School of Government receive defensive training on potential JR
of government actions, to ensure they are ‘better placed to advise on and make legally sound
decisions,’ via Government Legal Department, The Judge Over Your Shoulder – A Guide to Good
Decision Making (5th ed., TSO, 2016) p, 5.
Harlow and Rawlings compared JR’s role to a system of traffic lights controlled by the courts with the
aim of permitting ‘good governance’ to flow. The Red Light is when the courts act as a check on
administrative power, the primary purpose of administrative law is to keep the power of
government within their legal bounds, so as to protect the citizen against their abuse (a traditional
liberal perspective), and the Green Light is when the law facilitates the administration, the role of
administrative law is not to act as a counterweight to the interventionist state, but to facilitate
legitimate government action. (a social-welfare perspective).
, (iii) Judicial Review and Parliamentary Sovereignty:
Judges deciding cases, such as British Railways Board v Pickin [1974], accepted the courts lack the
legitimacy to challenge the content of Acts of Parliament, or to consider alleged irregularities in the
manner of their enactment.
Even when the Merchant Shipping Act 1998 provisions were disapplied when they conflicted with EU
law in R v Secretary of State for Transport ex parte Factortame (No. 2) [1991]), Lord Bridge
emphasised Parliament placed self-imposed limits upon entering the EU, and that courts remain
faithful to the European Communities Act 1972. If Parliament wants to exclude JR of certain public
functions completely, the courts insisted Parliament would need to enact an ‘ouster clause’ (R (Cart)
v Upper Tribunal (2012)). However, if such clauses are considered a threat to administrative justice,
the court will attempt to circumvent them (R v (Privacy International) Investigatory Powers Tribunal
[2019).
The UK Government have introduced legislation that imposes general restrictions on JR, with The
Criminal Justice and Courts Act 2015, with Lord Neuberger arguing caution with these reforms, giving
they ‘come from the very body which is at the receiving end of JR’.
(iv) Judicial Review and the Separation of Powers:
Tensions are inevitable as JR ‘requires the courts to step into the territory which belongs to the
executive’ (R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995]
(Lord Mustill). JR discontent grew to a point where the Ministry of Justice’s Lord Chancellor Chris
Grayling saying ‘the use of unmeritorious applications for judicial review to delay, frustrate or
discourage legitimate executive action’. 10 years later, Robert Buckland said, to similar effect, ‘it is
frankly being abused in order to conduct politics by other means’.
Robert Stevens identified a collective crisis in confidence as to the legitimacy of their challenging of
actions of elected governments: ‘As Britain moved from oligarchy to democracy, and as
utilitarianism and then liberalism became the fashionable order of the day, the Reform Acts of 1832,
1867 and 1884 made it appear increasingly inappropriate for the judiciary to intrude into the public
law arena’ (p. 335, ‘Government and the Judiciary’).
(v) Judicial Review Across the UK’s Jurisdictions:
The Independent Review of Administrative Law noted in 2021 that ‘there are substantial similarities
in judicial review in all three United Kingdom jurisdictions: in the understanding of its constitutional
function and purpose; in the grounds of review; in procedures, including the rules on standing; and
in the available remedies’.
The courts have developed special rules over how JR operates when treating democratically elected
devolved legislatures as public bodies. In Scotland and Northern Ireland, JR is a devolved matter, and
the Scottish Parliament and Northern Ireland Assembly could increase the distinctive nature of JR in
both jurisdictions. Differences that do exist do not, at present, change the substantive nature of JR.
The Source of the Judicial Review Jurisdiction:
There are two theoretical explanations: the doctrine of ultra vires and the common law theory.
(i) Ultra Vires Doctrine:
JR can be questioned on the basis of lack of democratic legitimacy of the courts, and this
undermined the courts’ willingness to use their powers to supervise public decision-making for much
