Judicial review - Decisions subject to judicial review

Learning Outcomes

After reading this article, you will be able to:

• Identify which decisions and bodies are subject to judicial review.
• Distinguish between public and private law decisions for review purposes.
• Explain the requirements for standing (locus standi) in judicial review.
• Apply the principles to realistic scenarios, as required for the SQE1 exam.

SQE1 Syllabus

For SQE1, you are required to understand the scope and limits of judicial review. In your revision, focus on:

• The types of decisions and acts that are subject to judicial review.
• The distinction between public law and private law decisions.
• The test for identifying public bodies and public functions.
• The requirement for standing (sufficient interest) in judicial review claims.
• The principle of procedural exclusivity and exceptions.
• The role of judicial review in upholding the rule of law and separation of powers.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which of the following is subject to judicial review: (a) a decision by a government minister to grant planning permission; (b) a private contract dispute between two companies; (c) a disciplinary decision by a statutory tribunal?
2. What is the test for determining whether a body is amenable to judicial review?
3. Who must have "sufficient interest" to bring a claim for judicial review?
4. Can a pressure group ever have standing to bring a judicial review claim?

Introduction

Judicial review is the process by which the courts supervise the actions and decisions of public bodies to ensure they act within their legal powers. It is a key mechanism for upholding the rule of law and holding public authorities to account. Not every act or decision can be challenged by judicial review—only certain types of decisions, made by certain bodies, are reviewable.

Decisions Subject to Judicial Review

What Is a Reviewable Decision?

Judicial review is available to challenge decisions, actions, or omissions by public bodies that have legal consequences. These include:

• Decisions made under statutory powers (e.g., granting or refusing a licence).
• The exercise of prerogative powers by government ministers.
• Decisions of tribunals, regulatory bodies, and local authorities.
• The making of delegated legislation.

Key Term: judicial review Judicial review is the court procedure for challenging the lawfulness of decisions or actions by public bodies.

A decision is reviewable if it affects rights, obligations, or legitimate expectations. Purely advisory opinions, recommendations, or internal guidance with no legal effect are not reviewable.

Public Law vs Private Law

Judicial review is concerned with public law decisions. Private law disputes—such as contract or tort claims between private parties—are not reviewable by this process.

Key Term: public law Public law governs the relationship between individuals and the state, and the powers of public bodies.

Key Term: private law Private law governs relationships between private individuals or entities, such as contracts and torts.

Who Is Amenable to Judicial Review?

Judicial review applies to decisions made by public bodies or those exercising public functions. This includes:

• Central and local government departments.
• Statutory tribunals and regulatory agencies.
• Private entities exercising public functions (e.g., a private company running a public service under statutory authority).

The leading test is whether the body derives its power from statute or exercises functions of a public nature.

Key Term: public body A public body is an entity created by statute or exercising public functions, subject to judicial review.

The Datafin Test

The courts use a two-stage approach (from R v Panel on Take-overs and Mergers, ex p Datafin plc):

1. Source of Power: Is the body established by statute, delegated legislation, or prerogative power?
2. Nature of Power: If not, does it exercise public law functions or have public law consequences?

If either limb is satisfied, the body is amenable to judicial review.

Non-Reviewable Decisions

• Decisions of purely private bodies acting in a private capacity.
• Internal management decisions of companies or clubs (unless exercising public functions).
• Non-binding recommendations or advice.

Procedural Exclusivity

Claims raising public law issues must generally be brought by judicial review, not by ordinary private law actions. However, if a case involves both public and private law elements, the public law issue may sometimes be raised as a defence in private proceedings.

Standing (Locus Standi)

To bring a claim for judicial review, a claimant must have "sufficient interest" in the matter.

Key Term: standing (locus standi) Standing is the requirement that a claimant must have a sufficient interest in the subject matter of the judicial review claim.

The courts interpret "sufficient interest" flexibly. A person directly affected by a decision will usually have standing. Pressure groups or public interest claimants may also have standing if the issue is important, there is no other responsible challenger, and the group has a genuine concern.

Worked Example 1.1

A local authority refuses to grant a taxi licence to an applicant. The applicant wishes to challenge the decision. Is this decision subject to judicial review?

Answer: Yes. The local authority is a public body exercising statutory powers. The refusal of a licence is a public law decision affecting the applicant's rights, and is reviewable by judicial review.

Worked Example 1.2

A private care home terminates a resident's contract. The resident wishes to challenge the decision by judicial review. Is this possible?

Answer: No. The care home is a private body acting in a private capacity. The dispute is a matter of private law (contract), not public law, and is not amenable to judicial review.

Worked Example 1.3

A pressure group challenges a government decision to fund a controversial infrastructure project. The group is not directly affected but argues the issue is of public importance. Can it have standing?

Answer: Possibly. The courts may grant standing to a pressure group if the issue is important, the group has a genuine concern, and there is no other responsible challenger.

Exam Warning

The courts will not grant standing to "busybody" claimants with no genuine interest in the matter. However, they may allow public interest groups to bring claims where the rule of law is at stake and there is no other challenger.

Revision Tip

When analysing a scenario, always identify: (1) the nature of the decision; (2) the body making it; (3) whether the claimant is directly affected or has sufficient interest.

Summary

Key Point Checklist

This article has covered the following key knowledge points:

• Judicial review is available only for decisions or actions by public bodies or those exercising public functions.
• Reviewable decisions must have legal effect and affect rights, obligations, or legitimate expectations.
• Private law disputes and purely private decisions are not subject to judicial review.
• The Datafin test is used to identify bodies amenable to judicial review.
• Claimants must have "sufficient interest" (standing) to bring a claim.
• Pressure groups may have standing in appropriate cases.
• Procedural exclusivity requires public law claims to be brought by judicial review.
• The courts interpret standing flexibly to allow access to justice in public interest cases.

Key Terms and Concepts

• judicial review
• public law
• private law
• public body
• standing (locus standi)