Law and Lawyers: Judicial Review

Introduction

Public Law Project describes JUDICIAL REVIEW as 'a way of challenging the decisions, acts (and sometimes the failure to act) of a public body, because it has not acted lawfully. It is a court procedure, brought in a branch of the High Court known as the Administrative Court, or in relation to certain types of case, in the Upper Tribunal' - (see Introduction to Judicial Review - pdf).

The key to judicial review lies in the words 'lawfully' and 'public body.' Essentially, the court is not concerned with the merits of the action taken by a public body but the court is concerned with whether the action taken is lawful. A basic example arises when the court ensures that a public body acts within the powers given to that public body by Parliament.

When they are deciding judicial review cases, judges

are careful not to determine whether the decision being challenged was right or wrong, or good or bad, as these are matters over which they have no expertise, and no democratic mandate. Instead the judges confine themselves to considering whether the decision being challenged was lawful, and complies with the principles of public law.

Judicial Review is concerned with PUBLIC bodies and that includes Ministers of the Crown and the many bodies created by statute. Examples are in this LIST.

Availability of judicial review

An individual or organisation must have sufficient interest, or “standing”, in the matter to which the judicial review relates in order to be bring a judicial review claim or be involved in it. This requirement is frequently referred to as locus standi.

Pinsent Masons Solicitors - Out-Law Guide to Judicial Review - point out that - 'Although the courts have avoided defining exactly what amounts to a sufficient interest, the general trend over recent years has been toward a liberalisation of this requirement, with the courts increasingly unwilling to dismiss a meritorious application for lack of standing. Pressure groups will generally be treated as having sufficient standing to bring a claim, providing there is no individual or other group with standing who has done so.'

The court’s permission to proceed is required in order to proceed with an application for judicial review.

Short time limits apply and those are set out in Civil Procedure Rules.

A claimant must state in the Claim Form what remedy is sought in the event that the claim succeeds.

Fees are payable and those should not be confused with costs. (NB: Costs can be very high in judicial review applications).

For the detail of judicial review claims, see the Administrative Court's Judicial Review Guide (248 pages pdf).

Grounds on which an application may succeed

In outline, the grounds are:

Illegality - when a decision-maker breaches a legal requirement, misdirects itself in law, exercises a power wrongly, or purports to exercise a power that it does not have, which is known as acting 'ultra vires';

Irrational / Unreasonable - A test for unreasonableness was set in 1948 in Associated Provincial Picture Houses Limited v Wednesbury Corporation where Lord Greene MR said -

The court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account or neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may be still possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, again, I think the court can interfere. The power of the court to interfere in each case is not as an appellate authority to override a decision of the local authority, but as a judicial authority which is concerned, and concerned only, to see whether the local authority have contravened the law by acting in excess of the powers which Parliament has confided in them.

There has been considerable debate about the Wednesbury test and whether it ought to be replaced. In Keyu v. Foreign Secretary [2015] 3 WLR 1665, the Supreme Court (sitting with 5 Justices) considered it inappropriate to accept argument that Wednesbury should be replaced with a proportionality test. Moving from rationality to proportionality would have “potentially profound and far-reaching consequences.”

Procedurally improper – a failure to observe statutory procedures or natural justice;

Breach of legitimate expectation – when a public body has failed to act in line with an expectation that it has created by its own statements or acts

Compliance with human rights frequently arises in judicial review claims

The actions of the devolved administrations in Wales, Scotland and Northern Ireland may also be challenged by way of judicial review, by reference to their powers as set out in the devolution settlements.

This is a complex area of law and there is continual development. All the grounds for judicial review are subject to extensive case law discussed in detail in texts for practitioner's and other textbooks.

Remedies

The court has available to it various remedies but remedies are always at the court's discretion. It is possible for the court to award more than one remedy. The court may also, in appropriate cases, decide NOT to award any remedy.

The question of remedies is often critical in judicial review proceedings, as it may determine not only whether it is worthwhile bringing a claim, but also whether permission will be granted to bring the claim.

One or more of six forms of final relief are available, and all are at the discretion of the court. These are:

a declaration;
an order quashing the decision in question (quashing order);
an order requiring the body under review to carry out its legal duties (mandatory order);
an order restraining the body under review from acting beyond its powers (prohibition order)
a stay or injunction;
damages.

Declarations and quashing orders are by far the most commonly granted remedies in judicial review.

Reforms introduced in 2022 mean that the Administrative Court in England and Wales has the option of suspending a quashing order in some cases, so that the public body is first given the opportunity to correct any failure that the court has identified. The court also has a discretion to limit the retrospective effects of the quashing order, so that things done by the public body before the quashing order was granted remain lawful.

Tension between Executive and Judiciary

There can be a tension between the executive and the courts. At times, the executive seeks minimal restrictions on its activities but the RULE of LAW is a fundamental concept in a democracy and demands that even the government, with all its immense power, acts within the law. From time-to-time, legislation has been enacted to try to either prevent or limit judicial review.

An ouster clause is a clause in legislation which seeks to deny, or ‘oust’, the courts’ supervisory jurisdiction over the exercise of public power. This means that the subject matter of the ouster clause cannot be challenged in the courts. Given the constitutional importance of the court’s supervisory jurisdiction, the courts will assume that Parliament does not intend to exclude all judicial review unless the statutory language introducing an ouster clause is absolutely clear - Pyx Granite Co. Ltd v Ministry of Housing and Local Government [1960] AC 260, para 286.

Non-justiciability

A further complication to judicial review exists because some aspects of governmental decision-making are considered to be non-justiciable. The recent case of R (Campbell) v His Majesty’s Attorney-General for England and Wales [2025] EWHC 1653 (Admin) offers an example. The Attorney General refused to give his permission for an application to the High Court to quash a finding made at at Coroner's inquest. The Administrative Court held this decision to be non-justiciable.

See also R (Miller) v The Prime Minister [2025] UKSC 41 - concerning the 2019 purported prorogation of Parliament.

Endpiece

The above notes highlight the key features of judicial review in English law. The links below may be of interest to those wishing to take a deeper dive into this topic.

Links

Senior Courts Act 1981 sections 29 and 29A

Judicial Review and Courts Act 2022

Civil Procedure Rules Part 54

Administrative Court - Judicial Review Guide

Public Law Project - Introduction to Judicial Review

Institute for Government - Explainer - Judicial Review

British Institute for Human Rights - What is Judicial Review

Pinsent Masons - Judicial Review Guide

Administrative Law Matters blog November 2016 - Wednesbury and Proportionality: Where are we now?

Lord Carnwath - Speech 12 November 2013 - From judicial outrage to sliding scales - where next for Wednesbury?

Kingsley Napley 6 August 2021 - The UK Supreme Court has confirmed the principles for judicial review of policies

New Law Journal 14 February 2020 - Wednesbury unreasonableness: Alive and Kicking? A useful discussion of Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223, [1947] 2 All ER 680

The Royal Prerogative and Ministerial Advice - House of Commons Library (1 August 2025). Prerogative powers are of considerable importance within the constitutional arrangements of the UK. Judicial Review in relation to prerogative powers has changed markedly in recent times.

R (Campbell) v His Majesty’s Attorney-General for England and Wales [2025] EWHC 1653 (Admin)

R (Miller) v The Prime Minister [2025] UKSC 41

*** NOTES FOR STUDENTS ***

28/4/25 - Human Rights

https://obiterj.blogspot.com/2025/04/human-rights-background.html

30/4/25 - Inquiries

https://obiterj.blogspot.com/2025/04/inquiries-notes-for-students.html

3/5/25 - Treaties

https://obiterj.blogspot.com/2025/05/treaties-notes-for-students.html

5/5/25 - A Codified Constitution

https://obiterj.blogspot.com/2025/05/a-codified-constitution-notes-for.html

9/5/25 - Rule of Law