Learning Outcomes
After reading this article, you will be able to explain the supervisory jurisdiction of the courts through judicial review, identify the main grounds for review (illegality, irrationality, procedural impropriety), and apply these principles to realistic client-based scenarios. You will also understand who may be subject to judicial review, the limits of the courts' supervisory powers, and the key procedural requirements for bringing a claim.
SQE1 Syllabus
For SQE1, you are required to understand the courts' supervisory jurisdiction via judicial review. Focus your revision on:
- the nature and purpose of judicial review as a supervisory remedy
- the main grounds for judicial review (illegality, irrationality, procedural impropriety)
- which bodies and decisions are amenable to judicial review
- the limits of the courts’ supervisory powers
- key procedural requirements for bringing a judicial review claim
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.
- What is meant by the "supervisory jurisdiction" of the courts in the context of judicial review?
- Which of the following is NOT a ground for judicial review?
a) Illegality
b) Irrationality
c) Procedural impropriety
d) Merits of the decision - Can a private company performing a public function be subject to judicial review? Briefly explain.
- What is the main difference between judicial review and an appeal on the merits?
Introduction
Judicial review is the process by which the courts supervise the exercise of public power, ensuring that public bodies act lawfully, rationally, and fairly. This supervisory jurisdiction is a key feature of the UK constitution, supporting the rule of law and providing a check on the executive and administrative actions of government and other public authorities.
Key Term: judicial review
Judicial review is the procedure by which the courts supervise the legality of decisions or actions taken by public bodies, ensuring they act within their legal powers.
The Supervisory Jurisdiction of the Courts
The courts' supervisory jurisdiction means that they oversee—not replace—the decisions of public bodies. The courts do not substitute their own judgment for that of the decision-maker. Instead, they ensure that public authorities act within the limits of their legal powers, follow fair procedures, and make rational decisions.
Key Term: supervisory jurisdiction
Supervisory jurisdiction refers to the courts' power to oversee the legality of actions and decisions of public bodies, rather than to decide the merits of those actions.
Grounds for Judicial Review
Judicial review is available on three main grounds:
Illegality
A decision is unlawful if the public body acts outside its legal powers (ultra vires), misinterprets the law, or uses its powers for an improper purpose.
Key Term: illegality
Illegality is a ground for judicial review where a public body acts outside its legal powers or fails to comply with the law.
Common examples include:
- Acting without legal authority
- Wrongful delegation of decision-making
- Fettering discretion by rigidly applying a policy
- Taking into account irrelevant considerations or ignoring relevant ones
- Using powers for an improper or unauthorised purpose
Irrationality
A decision may be challenged if it is so unreasonable that no reasonable authority could have made it. This is often called "Wednesbury unreasonableness."
Key Term: irrationality
Irrationality is a ground for judicial review where a decision is so unreasonable that no reasonable authority could have made it.
The threshold is high: the decision must be "outrageous in its defiance of logic" or "so unreasonable that no reasonable authority could have come to it."
Procedural Impropriety
This ground concerns failures to follow fair procedures, including breaches of natural justice (such as the right to a fair hearing or the rule against bias) or failure to comply with statutory procedural requirements.
Key Term: procedural impropriety
Procedural impropriety is a ground for judicial review where a public body fails to follow fair procedures or breaches statutory procedural requirements.
Procedural impropriety includes:
- Denying a fair hearing
- Actual or apparent bias
- Failure to follow mandatory statutory procedures
Key Term: natural justice
Natural justice refers to the common law principles requiring fair procedures, including the right to a fair hearing and the rule against bias.
Who and What Is Amenable to Judicial Review?
Judicial review is available against public bodies and those exercising public functions. This includes government departments, local authorities, and sometimes private entities performing public functions (such as regulatory bodies or private companies providing public services).
Key Term: amenability to judicial review
Amenability to judicial review means that a body or decision can be challenged by judicial review because it exercises public functions.
The courts use two main tests:
- Source of power: Is the body established by statute or exercising statutory powers?
- Nature of function: Is the body performing a public function, even if it is a private entity?
Worked Example 1.1
A private company is contracted by a local authority to run public libraries. A member of the public is banned from all libraries by the company for alleged misconduct. Can the member seek judicial review of the company's decision?
Answer: Yes, if the company is performing a public function (running public libraries), its decisions may be amenable to judicial review.
Limits of the Supervisory Jurisdiction
The courts' supervisory jurisdiction is not unlimited. Judicial review is not available to challenge the merits of a decision—only its legality, rationality, or fairness. The courts will not intervene simply because they would have reached a different conclusion.
Certain decisions are also considered "non-justiciable," such as those involving high policy (e.g., national security, foreign affairs) or where Parliament has provided an alternative statutory remedy.
Key Term: non-justiciable
Non-justiciable refers to matters that the courts consider inappropriate for judicial review, often because they involve high policy or political questions.Key Term: ouster clause
An ouster clause is a statutory provision that seeks to exclude or limit the courts' power to review certain decisions.
Key Procedural Features
To bring a claim for judicial review, the claimant must:
- Have "sufficient interest" (standing) in the matter
- Bring the claim promptly and within the prescribed time limit (usually within three months)
- Challenge a public law decision (not a purely private law matter)
- Seek permission from the court to proceed
Key Term: standing (sufficient interest)
Standing means that the claimant must have a direct, personal, or sufficient interest in the decision or action being challenged.Key Term: permission stage
The permission stage is the initial step in judicial review where the court decides whether the claim is arguable and should proceed to a full hearing.
Remedies Available
The main remedies in judicial review are:
- Quashing order (nullifies the decision)
- Prohibiting order (prevents unlawful action)
- Mandatory order (compels lawful action)
- Declaration (clarifies legal rights)
- Injunction (restrains unlawful conduct)
- Damages (only if another private law right is also infringed)
Key Point Checklist
This article has covered the following key knowledge points:
- Judicial review is the courts' supervisory process for ensuring public bodies act lawfully, rationally, and fairly.
- The main grounds for review are illegality, irrationality, and procedural impropriety.
- Judicial review is available against public bodies and private entities performing public functions.
- The courts' supervisory jurisdiction does not allow review of the merits of a decision.
- Claimants must have sufficient interest, act promptly, and seek permission to proceed.
- Remedies include quashing, prohibiting, and mandatory orders, as well as declarations and injunctions.
Key Terms and Concepts
- judicial review
- supervisory jurisdiction
- illegality
- irrationality
- procedural impropriety
- natural justice
- amenability to judicial review
- non-justiciable
- ouster clause
- standing (sufficient interest)
- permission stage
