Basic principles of judicial review

The principles

Together with our members, we have defined some fundamental principles that underpin judicial review:

  1. Maintaining checks and balances
  2. Judicial independence
  3. Eligibility
  4. Accessibility and affordability
  5. Scope
  6. Effective remedies

1. Maintaining checks and balances

The fundamental purpose of judicial review is to determine whether public authorities are acting in accordance with the laws passed by Parliament.

It protects individuals against state power and ensures that government, public agencies and regulators can all be held accountable.

Without an effective system of judicial review, other fundamental constitutional principles, such as parliamentary sovereignty, will be undermined.

Its essential contribution to maintaining the rule of law and democratic principles within the wider constitutional system should not be diminished.

Ensuring that there remains an effective and accessible mechanism to hold government, public bodies and regulators accountable (in accordance with laws passed by parliament) must be the cornerstone of any eventual reform.

2. Judicial independence

Judicial review brings law and politics closer together. A mature democracy must be prepared to deal with these tensions.

Judges must be free to exercise their functions in matters of judicial review:

  • without fear or favor
  • away from political considerations and criticism
  • without being supposed to have an agenda beyond their role in upholding the law

This allows them to fulfill their constitutional role and effectively enforce the rights of individuals and organizations.

3. Eligibility

Judicial review relates to decision-making:

  • government
  • public bodies
  • regulators

A case of judicial review concerns whether these bodies use their powers in accordance with the law. As such, judicial review must be available to all those affected by the decisions of these bodies.

This includes citizens and non-citizens where appropriate such as immigration cases or where a company has business interests in the UK.

Organizations such as charities or trade unions should also be able to act, within reason, in the interests of the people, organizations or issues they represent.

They should be able to do so by initiating or intervening in applications for judicial review.

4. Accessibility and affordability

There should not be excessive procedural obstacles which act as an obstacle to the lodging of a complaint.

The need for prompt resolution and sufficient opportunity to pursue a claim must be appropriately balanced.

To be fully accessible, filing an application for judicial review must also be affordable.

Where people do not have their own financial means, adequate levels of legal aid should be provided to ensure equal access to courts to assert their rights.

The awarding of costs and court costs should not be so punitive or unduly burdensome as to preclude the filing of claims.

5. Scope

Because judicial review deals with decisions made by public bodies, it often deals with decisions that may be political or perceived to be political.

As the powers of the state have expanded, so has the scope of decisions subject to judicial review.

It is not the role of the courts to question political decisions, and judicial review should not interfere with the legitimate use of state power. Judges are sensitive to this and they can, and regularly do, make decisions about what is not subject to judicial review.

However, there should be no artificial or inconsistent restrictions on the type of decisions that can be reviewed.

Where there are legal questions, the court should properly be able to decide that those questions and certain questions, or classes of questions, should not be excluded from judicial review.

Given the power imbalance between individuals and the state, it is important that people have a meaningful ability to challenge decisions that affect their lives and legal rights, to ensure that they were made lawfully.

For judicial review to work effectively as a remedy of last resort, there must be adequate alternative mechanisms in place to allow people to assert their rights.

6. Effective remedies

The circumstances of judicial review cases vary widely. No two cases are the same, so what will be a fair result in one will not necessarily be so in the other.

Judges must have a range of remedies and the discretion to grant them, to ensure that justice is actually done.