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This lesson examines judicial review — one of the most important mechanisms by which the judiciary holds the executive to account. Judicial review allows courts to assess whether decisions made by public bodies are lawful, ensuring that the government acts within the boundaries of the law. This is a central topic in the Edexcel A-Level Politics specification.
Judicial review is the process by which courts examine the decisions, actions, or omissions of public bodies — including government ministers, local authorities, and public agencies — to determine whether they are lawful.
Crucially, judicial review does NOT assess whether a decision was wise, fair, or good policy. It assesses only whether the decision-maker:
Key Term: Judicial review is the process by which courts determine whether a public body has acted within its legal powers and followed proper procedures.
If a court finds that a public body acted unlawfully, it can quash (cancel) the decision, require the body to reconsider, or prohibit a future action.
The Latin term ultra vires means "beyond the powers." A public body acts ultra vires when it does something it does not have the legal authority to do.
For example:
Ultra vires is the foundational principle of judicial review: public bodies can only do what the law empowers them to do. If they exceed those powers, the courts can intervene.
The three traditional grounds for judicial review were established by Lord Diplock in the landmark case Council of Civil Service Unions v Minister for the Civil Service (1985), commonly known as the GCHQ case:
The decision-maker must correctly understand and apply the law. A decision is illegal if:
Example: In R (Miller) v Secretary of State for Exiting the EU (2017), the Supreme Court ruled that the government's use of prerogative power to trigger Article 50 was illegal because it would remove statutory rights. Only Parliament could authorise such an action.
A decision is irrational if it is so unreasonable that no reasonable decision-maker could have reached it. This test was established in Associated Provincial Picture Houses v Wednesbury Corporation (1948) and is therefore known as Wednesbury unreasonableness.
The bar for irrationality is deliberately high — courts recognise that there is often a range of reasonable decisions open to a public body, and they should not substitute their own judgment for that of the decision-maker.
Example: In the Wednesbury case itself, a local authority granted a cinema licence on condition that no children under 15 be admitted on Sundays. The cinema challenged this as unreasonable, but the court held that the condition was not so unreasonable that no reasonable authority could have imposed it.
A decision is procedurally improper if the decision-maker failed to follow a fair procedure. This includes:
Example: In Ridge v Baldwin (1964), the House of Lords held that a Chief Constable who had been dismissed without a hearing was entitled to natural justice — he should have been given the opportunity to present his case.
Although not one of Lord Diplock's original three grounds, proportionality has become increasingly important, particularly in cases involving human rights under the HRA 1998.
Proportionality asks: Was the action taken no more than necessary to achieve its legitimate aim?
A four-stage test for proportionality was established in Bank Mellat v HM Treasury (No. 2) (2013):
Proportionality is a stricter test than Wednesbury unreasonableness. Under Wednesbury, courts ask only whether the decision was within the range of reasonable outcomes. Under proportionality, courts examine the decision more intensively.
The Human Rights Act 1998 significantly expanded the scope of judicial review by providing new grounds for challenge:
Section 6 of the HRA makes it unlawful for any public authority to act in a way that is incompatible with the rights set out in the European Convention on Human Rights (ECHR). This means that any decision by a public body that violates Convention rights can be challenged through judicial review.
Section 3 requires courts to interpret legislation, "so far as it is possible to do so," in a way that is compatible with Convention rights. This gives judges a powerful tool: they can effectively read words into or out of statutes to make them compatible with human rights.
Example: In Ghaidan v Godin-Mendoza (2004), the House of Lords used Section 3 to read the Rent Act 1977 as applying to same-sex partners as well as opposite-sex partners — even though the original statute referred only to a "husband or wife."
If a court finds that legislation cannot be interpreted consistently with Convention rights — even using Section 3 — it can issue a declaration of incompatibility. This is a formal statement that the law is incompatible with the ECHR, but it does not invalidate the law. It is up to Parliament to decide whether to amend it.
Example: In the Belmarsh case (2004), the House of Lords declared that the detention provisions of the Anti-terrorism, Crime and Security Act 2001 were incompatible with Articles 5 and 14 of the ECHR. Parliament subsequently replaced the detention provisions with a system of control orders under the Prevention of Terrorism Act 2005.
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