Judicial review is essential to the rule of law.

Introduction

This essay critically examines the normative constitutional argument that judicial review is essential to the rule of law and to the United Kingdom’s constitutional principles, including its quasi-separation of powers between government, Parliament, and the judiciary. Judicial review is the process by which individuals and organisations may challenge decisions made by public bodies before the courts. Specific legal criteria govern who may bring a claim and on what grounds. These rules are strictly applied, partly to address concerns over a potential flood of litigation. Public bodies in the UK bear significant responsibilities in delivering public services, yet their decisions are increasingly affected by budgetary constraints, limited resources, and evolving socio-economic pressures. Nonetheless, as the case law will demonstrate, such bodies sometimes make decisions that prima facie conflict with the rule of law or infringe upon human rights.

The discussion will begin by outlining the legal framework of judicial review, including its common law foundations and statutory provisions. It will then explore the constitutional tension between judicial oversight and democratic accountability, address criticisms of judicial overreach, and conclude by evaluating whether judicial review remains essential to preserving the rule of law in the modern UK context.

Understanding the Rule of Law

The rule of law is a foundational principle of the UK constitution, often associated with the work of A.V. Dicey, who defined it as involving the supremacy of law over arbitrary power, legal equality, and the predominance of legal spirit. More contemporary understandings, such as that of Lord Bingham in The Rule of Law (2010), include the notion that public authorities must exercise their powers fairly, within the scope of the law, and in a manner consistent with human rights and access to justice.

Judicial review is the chief mechanism by which these principles are enforced. It ensures that government bodies act lawfully, rationally, and fairly — not merely in the political sense, but in accordance with legal standards. Without such judicial oversight, the legal accountability of public decision-makers would be significantly weakened.

The Process of Judicial Review

Judicial review in the UK is largely governed by common law principles, though statutory and procedural rules also provide important structure. The process allows individuals and groups to challenge the decisions of public authorities where those decisions are alleged to be unlawful.

A claim must be brought promptly, and within three months of the decision under challenge, using a specific claim form under Part 54 of the Civil Procedure Rules (CPR). The claimant must first obtain permission to proceed, which acts as a filtering mechanism to exclude unmeritorious cases. The court may grant various remedies, including quashing orders, prohibiting orders, mandatory orders, declarations, and injunctions. Damages may also be awarded, though only where another legal basis exists.

Common Law Principles of Judicial Review

The leading authority on the grounds for judicial review remains Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case), in which Lord Diplock identified three core heads of review: illegality, irrationality, and procedural impropriety.

·         Illegality occurs when a public authority acts outside the scope of its lawful powers, commonly referred to using the Latin maxim ultra vires, translating to “beyond the powers.” In Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, the House of Lords held that a misinterpretation of the law could amount to a jurisdictional error.

• Irrationality, or Wednesbury unreasonableness, arises where a decision is so unreasonable that no reasonable authority could have reached it (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223).

• Procedural impropriety involves a failure to follow fair procedures or breaches of natural justice, as seen in Ridge v Baldwin [1964] AC 40.

A fourth ground, proportionality, has emerged primarily through the influence of the Human Rights Act 1998. In R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532, the House of Lords applied proportionality to determine whether restrictions on prisoners' rights were justified under Article 8 ECHR. While not universally adopted outside the human rights context, proportionality remains a developing area of common law.

Statutory Framework

The primary statutory provision governing judicial review is s.31 of the Senior Courts Act 1981, which establishes the procedural basis for claims in the High Court and the availability of judicial remedies.

Other relevant statutes include:

• The Tribunals, Courts and Enforcement Act 2007, which gives limited judicial review powers to the Upper Tribunal.

• The Human Rights Act 1998, which permits courts to assess the compatibility of public decisions with the European Convention on Human Rights.

• The Criminal Justice and Courts Act 2015, which introduced reforms such as:

• s.84: requiring courts to refuse relief where it is highly likely that the outcome would not have been substantially different.

• s.88–89: addressing procedural requirements and the award of costs.

Recent reforms under the Judicial Review and Courts Act 2022 introduced the power to issue suspended quashing orders, allowing unlawful decisions to remain temporarily valid while authorities remedy the defect — an attempt to give courts more flexibility without overstepping into executive functions.

Delicate Constitutional Balance

Although judicial review is a critical safeguard against unlawful public action, it also raises concerns about judicial overreach. Critics argue that allowing unelected judges to scrutinise decisions made by politically accountable officials undermines democratic legitimacy.

This constitutional tension was at the heart of R (Miller) v Prime Minister [2019] UKSC 41 (Miller (No. 2)), where the Supreme Court held that the Prime Minister’s advice to prorogue Parliament was unlawful. While hailed by many as a defence of parliamentary sovereignty and constitutional accountability, others saw it as an example of judicial activism in a politically sensitive area.

Similarly, in Evans v Attorney General [2015] UKSC 21, the Supreme Court quashed a ministerial veto blocking the publication of the Prince of Wales’s correspondence. While the judgment reinforced judicial independence and the transparency of government, it drew criticism for diminishing the authority Parliament had explicitly granted to ministers.

In R (Begum) v Special Immigration Appeals Commission [2021] UKSC 7, the Court declined to overturn the removal of Shamima Begum’s citizenship, recognising that national security assessments are better left to the executive. This case illustrates the judiciary's awareness of institutional limits, particularly in matters involving foreign policy or national security.

To manage this balance, courts have developed doctrines such as judicial deference and the margin of appreciation, particularly in areas involving socio-political judgments, technical expertise, or national interest. These principles ensure that judicial review remains a supervisory, not substitutive, function.

Doctrines of Judicial Deference and Margin of Appreciation

To navigate the tension between judicial scrutiny and respect for democratic decision-making, the courts have developed the doctrines of judicial deference and the margin of appreciation. These principles allow judges to recognise the institutional competence of the executive and Parliament, particularly in areas involving political judgment, national security, or resource allocation. Judicial deference was notably discussed by Lord Hoffmann in R (ProLife Alliance) v BBC [2003] UKHL 23, where he emphasised that courts should defer to the judgment of public bodies in matters falling within their expertise or democratic mandate. This approach was reinforced in A v Secretary of State for the Home Department [2004] UKHL 56, where the House of Lords accepted that decisions on national security deserved a certain level of judicial restraint, even while applying human rights principles.

The margin of appreciation, though a concept derived from the European Court of Human Rights, has influenced domestic judicial reasoning under the Human Rights Act 1998. It was applied in R (SB) v Governors of Denbigh High School [2006] UKHL 15, where the House of Lords held that a school’s decision regarding religious dress fell within an area where domestic authorities should be afforded a degree of latitude. Both doctrines serve to reinforce the idea that judicial review, while central to the rule of law, does not require courts to act as substitute decision-makers. Instead, they enable courts to uphold legality and rights without unduly interfering in areas that are better resolved through democratic or expert processes.

While judicial review plays a pivotal supervisory role in the constitutional order, it is not without controversy. Some scholars and commentators have questioned whether its expanding scope is always compatible with democratic principles or necessary to uphold the rule of law in every context.

Contrarian Perspectives: A Critical Reflection on Judicial Review

While judicial review is often upheld as a cornerstone of the rule of law, several contrarian perspectives suggest that its role and necessity should not be accepted uncritically. Critics argue that judicial review may encourage a form of judicial supremacy, whereby unelected judges shape constitutional principles in ways that arguably intrude upon the democratic prerogatives of Parliament and the executive. This concern was voiced in the wake of decisions such as R (Miller) v Prime Minister and Evans v Attorney General, where the courts were seen by some as developing constitutional norms without a clear statutory basis.

Further, judicial review has been criticised for its potential to disrupt efficient governance, particularly in areas such as immigration, social welfare, and planning law. The tightening of relief provisions under the Criminal Justice and Courts Act 2015, including s.84, reflects parliamentary concern about the courts’ role in delaying or undermining urgent administrative decisions.

Others have questioned the practical impact of judicial review, arguing that in many cases the remedies awarded are declaratory or symbolic rather than transformative. The introduction of suspended quashing orders under the Judicial Review and Courts Act 2022 exemplifies the judiciary’s increasingly cautious approach, potentially limiting the real-world effect of successful claims.

Finally, some suggest that the rule of law can be preserved through alternative accountability mechanisms, such as parliamentary oversight, ministerial responsibility, and internal review procedures. In this light, judicial review should be seen as one tool among many, and not always the most essential. These perspectives challenge the conventional view and invite a more nuanced understanding of the role judicial review plays within the broader constitutional landscape.

Is Judicial Review Essential to the Rule of Law?

Despite concerns about judicial overreach, judicial review remains vital to the maintenance of the rule of law. It is not a tool for the judiciary to second-guess political decisions, but a process to ensure that public authorities act within the bounds of their legal powers. Without judicial review, there would be no effective mechanism for individuals to challenge unlawful or unfair government action.

Moreover, the procedural safeguards — such as the permission stage, standing rules, and limits on remedies — ensure that courts do not become forums for political disputes. The restrained and reasoned approach of the judiciary, coupled with evolving doctrines and statutory reform, confirms that judicial review respects democratic structures while preserving legal accountability.

Conclusion

In conclusion, judicial review is not merely a procedural formality; it is the constitutional expression of the rule of law in action. It ensures that public power is exercised lawfully, fairly, and with respect for fundamental rights. While debates over judicial activism and institutional overreach are legitimate, the evidence suggests that UK courts have largely upheld their supervisory role with caution and principle. As the constitutional landscape continues to evolve, particularly in the post-Human Rights Act and post-Brexit era, judicial review remains an essential safeguard — one that ensures that no one, not even the state, is above the law.

Bibliography

Table of Cases

• A v Secretary of State for the Home Department [2004] UKHL 56

• Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL)

• Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223 (CA)

• Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (HL)

• Evans v Attorney General [2015] UKSC 21

• R (Begum) v Special Immigration Appeals Commission (SIAC) [2021] UKSC 7

• R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (HL)

• R (Miller) v Prime Minister [2019] UKSC 41

• R (ProLife Alliance) v British Broadcasting Corporation [2003] UKHL 23

• R (SB) v Governors of Denbigh High School [2006] UKHL 15

• Ridge v Baldwin [1964] AC 40 (HL)

Table of Legislation

• Civil Procedure Rules 1998, SI 1998/3132, pt 54

• Criminal Justice and Courts Act 2015

• Human Rights Act 1998

• Judicial Review and Courts Act 2022

• Senior Courts Act 1981

• Tribunals, Courts and Enforcement Act 2007

Secondary Sources

• Tom Bingham, The Rule of Law (Penguin 2011)

• A V Dicey, Introduction to the Study of the Law of the Constitution (10th edn, Macmillan 1959)