What is judicial review?
Judicial review is a kind of court case, in which someone (the “claimant”) challenges the lawfulness of a government decision.
This can be the decision of a central government department, another government body such as a regulator, a local authority, or certain other bodies when they are performing a public function.
If the claimant wins, then the government decision can be declared unlawful, or quashed. That will sometimes mean that the decision has to be made again. Alternatively, the court can order the government to do or not do something.
The law which applies in cases of this kind is sometimes called “public law” or “administrative law”. In very important cases which concern fundamental rights or the relationships between democratic institutions, it is sometimes called “constitutional law”.
On what grounds can a government decision be overturned by the courts?
There are three main grounds of judicial review: illegality, procedural unfairness, and irrationality.
A decision can be overturned on the ground of illegality if the decision-maker did not have the legal power to make that decision, for instance because Parliament gave them less discretion than they thought.
A decision can be overturned on the ground of procedural unfairness if the process leading up to the decision was improper. This might, for instance, be because a decision-maker who is supposed to be impartial was biased. Or it might be because a decision-maker who is supposed to give someone the chance to make representations before deciding on their case failed to do so.
A decision can be overturned on the ground of irrationality if it is so unreasonable that no reasonable person, acting reasonably, could have made it. This is a very high bar to get over, and it is rare for the courts to grant judicial review on this basis.
In addition, a decision can be overturned if a public authority has acted in a way which is incompatible with human rights that are given effect by the Human Rights Act 1998. There is one exception to this, though: if the public authority is merely doing what parliament told it to do, then it is not acting unlawfully even if it does act incompatibly with one of those rights.
A judge cannot quash or declare unlawful a government decision merely on the basis that the judge would have made a different decision, or that the decision was wrong.
Can the courts overturn legislation in judicial review cases?
The courts cannot overturn or quash primary legislation passed by parliament. This is because, in the UK constitution, parliament is sovereign.
The courts can overturn secondary legislation, made by ministers, on the normal grounds of judicial review.
How many judicial review cases are there, and how many are successful?
In 2018, some 3,597 claims for judicial review were lodged 4 Ministry of Justice, Civil justice stats table, https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/806900/civil-Justice-stats-main-tables-Jan-Mar_2019.x… (commenced) in the High Court. However, most cases do not get very far, because a claimant must convince the court that they have an “arguable” case in order to be granted permission to proceed to a full hearing.
Only 184 cases, or about 5% of total cases commenced, reached a full oral hearing in 2018. The rest were mostly refused permission to proceed, withdrawn, or resolved out of court.
Of the cases that did proceed to a full hearing, the government body under challenge won 50% and lost 40%. The other cases were mostly withdrawn or have not yet reached a conclusion.