The Law To Know

Administrative law · United Kingdom · about 4 minutes

Judicial review and its grounds

The lifeguard at the pool’s edge

← The hardest concepts in United Kingdom law

In one breath

Judicial review is the High Court’s power to check that a public body acted lawfully, not that it chose wisely. The usual grounds are illegality, irrationality and procedural unfairness, and the usual remedy is to quash the decision and send it back.

The picture

The lifeguard at the pool’s edge

A lifeguard does not choose a swimmer’s lane or speed. She watches for three things. Has the swimmer climbed onto a diving platform they were never allowed on? Is the swimmer doing something so reckless that no sensible swimmer would? Are the pool’s own rules about queueing and warnings being followed? When she blows the whistle, the swimmer must get out and begin again properly; she does not swim the length for them.

Judicial review has the same shape. A public body has a pool of power, set by a statute or sometimes by the royal prerogative. The court asks whether the body went outside that power or misunderstood the law, which includes ignoring something it had to consider or relying on something it should not. It asks whether the decision was so unreasonable that no reasonable body could have reached it. It asks whether the process was fair: a chance to be heard and a decision-maker without bias. The court usually sends the matter back.

Where the picture stops working

The grounds were worked out by judges, not written in a rulebook, and they overlap, so one complaint can often be put under several headings. Where Convention rights are engaged, the court may ask harder questions about whether an interference was proportionate. In Scotland the same kind of review is done by the Court of Session under its supervisory jurisdiction, with its own procedure.

How it really works

  1. 1Find the source of the power: an Act, rules made under an Act or, in some cases, the royal prerogative. Judicial review reaches public functions, not purely private arrangements.
  2. 2Ask the illegality questions. Did the body have the power? Did it misunderstand the law? Did it ignore a relevant matter, rely on an irrelevant one, or use the power for an improper purpose?
  3. 3Ask whether the decision was so unreasonable that no reasonable decision-maker could have made it. The bar is high; where Convention rights are involved, the court asks instead whether the interference was proportionate.
  4. 4Ask the procedure question. Was the person told the case against them and heard? Was the decision-maker free of bias? Were the steps required by statute followed?
  5. 5If a ground succeeds, the court chooses a remedy, usually a quashing order, which often leaves the body free to decide again.

Why people get it wrong

  • Treating judicial review as an appeal. The court examines whether the decision was lawfully made, not whether it was right on the merits.
  • Assuming that success gives the claimant what they wanted. The usual outcome is a fresh decision, and the same result may follow if the body goes about it lawfully.
  • Reading irrationality as “unreasonable” in the everyday sense. The threshold is far higher than disagreement.
  • Relying on a clause saying that a decision “shall not be questioned in any court”. Courts have read such clauses narrowly, and a decision tainted by an error of law has not been shielded by them (Anisminic).

A worked example

The facts are invented

An invented Act lets a council withdraw a market trader’s licence “if it is satisfied that the trader has sold unsafe goods”. Sam receives a letter saying the licence is withdrawn at once. The letter names no goods and gives Sam no chance to reply. The council’s file shows it also took into account rival traders’ complaints that Sam’s prices were too low. Sam applies for judicial review.

The court will not ask whether Sam’s goods were in fact safe. It asks whether the council followed the process the law required, and it did not: Sam was never told the case and could not answer it. The council also relied on an irrelevant matter, the complaints about prices. The court is likely to quash the withdrawal. That does not restore the licence for good: the council may decide again, hear Sam, confine itself to safety, and reach the same decision if the evidence supports it.

Try it

A council decides, after a fair hearing and within its powers, to close a public library. A resident thinks the decision foolish because the building is well used. Is that enough to succeed in judicial review?

Landmark authorities

Read the sources themselves; this list is a starting point.

  • Associated Provincial Picture Houses v Wednesbury Corporation, [1948] 1 KB 223
  • Ridge v Baldwin, [1964] AC 40
  • Anisminic v Foreign Compensation Commission, [1969] 2 AC 147
  • Council of Civil Service Unions v Minister for the Civil Service, [1985] AC 374

Where to go next

More hard concepts in United Kingdom law

This page is an educational overview. It is not legal advice and not a substitute for the sources: the statute, the rule, the case itself. The United Kingdom has three legal systems: England and Wales, Scotland, and Northern Ireland. These pages mostly describe the law of England and Wales and say where Scots law differs when it clearly does; Northern Ireland law is often similar to English law but is not covered separately. Parliament is sovereign, but the devolved legislatures also make law within their powers. Each page states the usual formulation of the rule and names landmark decisions; check the primary sources before relying on any rule.