Judicial review is the process where courts look at the lawfulness of a decision or action made by a public body. It is a key part of the UK’s unwritten constitution and is very important for making sure the government and other public authorities do not abuse their power. The constitutional functions of judicial review have developed over time through cases at common law, but have also been significantly changed by the Human Rights Act 1998 (HRA). By looking at important cases, we can see that the main roles of judicial review are to uphold the rule of law, to ensure that public bodies act within the powers given to them by Parliament, and more recently, to protect the fundamental rights of individuals. This essay will explore these functions by first looking at the traditional common law role, and then considering the impact of the HRA.
The Common Law Functions of Judicial Review
At common law, the main constitutional function of judicial review has been to enforce the principle of the rule of law. This means that government must be conducted according to the law and that public bodies can only do what the law authorises them to do. In the case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, often called the GCHQ case, the House of Lords set out the main grounds for challenging a decision, which were illegality, irrationality, and procedural impropriety. These grounds show the different ways in which judicial review works to control public power. The main issue in this case was the Prime Minister's decision to ban trade union membership at GCHQ without any consultation, however the court decided that although the decision could normally be reviewed, in this case it could not be because of national security concerns. Even though the government won, the case was important because it established a clear framework for judicial review.
The first ground, illegality, means that a public body must understand the law correctly and must not act outside of its powers, a concept known as acting ultra vires. The case of Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 shows this function very clearly. In this case, a group of milk producers complained about the price set by the Milk Marketing Board. The relevant Act of Parliament gave the Minister the power to refer complaints to a committee of investigation if he thought it was necessary. The Minister refused to refer the complaint, partly because he thought it would cause him political embarrassment. The House of Lords decided that the Minister’s discretion was not unlimited and that he had used his power to frustrate the purpose of the Act, which was to allow legitimate complaints to be investigated. Therefore, his decision was unlawful. This case shows that a key role of judicial review is to police the limits of power given by Parliament to ministers and other bodies, ensuring they use their powers for the reasons Parliament intended and not for their own reasons. This upholds both the rule of law and the principle of parliamentary sovereignty.
Another function of judicial review at common law is to prevent public bodies from making decisions that are completely unreasonable. This is the ground of irrationality, which is often called Wednesbury unreasonableness, after the case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. In this case, a local authority granted a cinema a licence to open on Sundays, but on the condition that no children under the age of 15 were admitted. The cinema company argued this condition was unreasonable. The court decided that it would only interfere with a decision if it was so unreasonable that no reasonable authority could ever have come to it. The main point from this case was that the test for irrationality is very high, and it is difficult for a claimant to succeed. This shows that the constitutional role of the courts is not to take over the job of the original decision-maker. Judges are not meant to decide if a decision was right or wrong, but only if it was lawful and rational. Some may argue that this makes the test too weak and lets public bodies get away with bad decisions, though that may not be a good enough reason for others to want judges to interfere more. Instead, it may be that the high threshold shows the courts respecting the separation of powers, by recognising that elected bodies and officials are the ones who should be making policy decisions.
The Expanded Role under the Human Rights Act 1998
The introduction of the HRA 1998 gave judicial review a major new constitutional function: the protection of human rights. The HRA incorporated most of the rights from the European Convention on Human Rights (ECHR) into UK domestic law. This means that individuals can now argue in UK courts that a public authority has acted in a way which is incompatible with a Convention right, under section 6 of the HRA. This has had a significant effect on the role of the judiciary.
One of the most important changes was the introduction of the proportionality test. In cases involving human rights, the courts now often use proportionality instead of the traditional Wednesbury unreasonableness test. This was shown in R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26. This case concerned a policy that required prisoners to be absent when their legally privileged correspondence was being checked by prison staff. The House of Lords found that this policy was a breach of the prisoner's right to privacy under Article 8 of the ECHR. Lord Steyn stated that the proportionality test requires a court to assess the balance between the interests of the individual and the interests of the community. A court must ask whether the objective of the measure is important enough to justify limiting a fundamental right, and whether the measure is rationally connected to the objective and goes no further than is necessary to achieve it. This is a much more intensive form of review than Wednesbury. This fact, coupled with the HRA's requirements, may have been what caused the court to be more willing to scrutinise the policy. This shows that the constitutional role of judicial review has moved from just ensuring decisions are not completely absurd, to actively balancing rights and public interests.
Perhaps the most dramatic example of the new role of judicial review under the HRA is found in the case of A v Secretary of State for the Home Department [2004] UKHL 56, also known as the Belmarsh case. After the 9/11 terrorist attacks, the government passed legislation that allowed foreign nationals suspected of terrorism to be detained indefinitely without trial. The claimants argued that this breached their right to liberty under Article 5 of the ECHR. The House of Lords agreed and made a declaration of incompatibility under section 4 of the HRA. This meant that the court formally declared that the law passed by Parliament was incompatible with the ECHR. The main issue in this case was whether the threat to national security justified detaining people in this way, however the court decided that the law was disproportionate and also discriminatory, because it only applied to foreign nationals and not to British citizens who might pose a similar threat. This case is hugely significant because it shows the judiciary performing a powerful constitutional role in checking the power of not just the executive, but also Parliament itself. Some may argue that a section 4 declaration is a challenge to parliamentary sovereignty, though it is important to note that the declaration does not invalidate the law. Instead, it leaves the final decision on whether to change the law with Parliament. This may be seen as a form of dialogue between the courts and Parliament, with the judiciary's function being to alert Parliament when it has passed a law that infringes on basic rights.
The Continuing Constitutional Tensions
The development of judicial review, especially under the HRA, has not been without controversy, and it highlights ongoing tensions in the UK constitution. There is a debate about the democratic legitimacy of judges, who are not elected, striking down or criticising the decisions of a democratically elected government and Parliament. The high threshold of Wednesbury unreasonableness was partly a way to manage this tension, by showing that courts would be very deferential to public bodies, especially on policy matters. However, the more intensive review under the proportionality test means that judges are now more involved in reviewing the substance of decisions.
This has led to accusations that judges are becoming too powerful and are engaging in politics. For example, some critics argue that cases like Belmarsh show judges overstepping their constitutional role and interfering in matters of national security, which should be for the government to decide. However, an alternative view is that the function of the judiciary in a democracy is precisely to uphold the rule of law and protect fundamental rights, especially for unpopular minorities, and to provide a check on the power of the majority. The decision in Belmarsh did not stop the government from taking measures to combat terrorism; it just said that the specific measure chosen was not lawful because it was discriminatory and disproportionate. Whether one agrees with the critics or not, it is clear that the case law shows judicial review performing a vital, and sometimes controversial, role as a constitutional watchdog.
In conclusion, case law at both common law and under the HRA shows that judicial review has several important constitutional functions. At common law, its primary role is to enforce the rule of law by ensuring that public bodies do not act illegally, irrationally, or with procedural unfairness. Cases like Padfield demonstrate how courts act to uphold parliamentary sovereignty by making sure that powers given by Parliament are used properly. The HRA has added a further, powerful dimension to this role. The function of judicial review now clearly includes the protection of fundamental human rights, with the courts using the more rigorous test of proportionality to balance individual rights against the public interest. Cases like Belmarsh show the courts taking on a significant constitutional role in scrutinising primary legislation and holding both the executive and Parliament to account. While this has created tensions around the separation of powers and democratic legitimacy, it also shows that the judiciary's role is seen as a fundamental part of the UK’s system of constitutional checks and balances.
References
A v Secretary of State for the Home Department [2004] UKHL 56.
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
Elliott, M. and Thomas, R. (2020) Public Law. 4th edn. Oxford University Press.
Human Rights Act 1998.
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997.
R v Secretary of State for the Home Department, ex parte Daly [2001] UKHL 26.
Wade, H.W.R. and Forsyth, C.F. (2014) Administrative Law. 11th edn. Oxford University Press.
