By Caragh Deery - Law Student @ St Hilda's College, Oxford
Judicial review is the cornerstone of administrative law. In judicial review actions, a judge reviews the lawfulness of a decision made or an action taken by a public authority. Any body exercising a public law function is susceptible to challenge by judicial review. This includes, but is by no means limited to, decisions of government departments, such as the Department for Education, decisions of the Attorney General, through to decisions made by local councils.
The constitutional importance of judicial review is immense. It ensures that the decisions of public bodies can be challenged by an independent and impartial body (a court). This means that judicial review is used to keep government powers in check – courts will ensure that a public authority is acting lawfully and is not abusing its powers.
Judicial review is limited in the sense that it is a challenge to how a decision has been made rather than a challenge to the outcome itself. To this end, judicial review is best interpreted as being concerned with procedures rather than substance. Whilst the courts need to keep the exercise of statutory powers in check, they should not substitute a public authority’s decision with its own simply because it thinks its decision would be better. When courts are reviewing the decisions of public authorities, they must have at the front of their minds that Parliament has explicitly given that body the power to make such decisions based on its expertise. The courts should be slow to interfere with and must respect a public authority’s conclusion, so long as that conclusion was lawfully reached.
Historically, this meant that only decisions which were outside a public authority’s jurisdiction were reviewable. This refers to decisions made by public authority’s that fall outside of the statutory powers conferred upon that authority. For example, if a statutory power permitted a local authority to grant planning permission within a certain postcode and purported to grant planning permission over a plot of land outside of that postcode, this would be a non-jurisdictional error.
However, the scope of judicial review has been expanded over time. Following Anisminic [1], errors of law are reviewable, even if the decision was within the authority’s jurisdiction. This would include where the local authority grants planning permission over a plot of land within the postcode its power extends to, but it has misinterpreted the legal rules for when planning permission can be granted in the first place. The rationale for this view, as explained in Page [2], is that Parliament only confers discretion to public authorities to be exercised on the correct legal basis. It is for this reason that all errors of law must be reviewable in theory.
The effects of Anisminic are important. The decision means that all questions of law are to be decided by the courts, not the public authorities. This reflects a power shift, as under the new approach, public authorities must now not only act within their jurisdiction but must also get the law right. This turns the standard of review for errors of law into one of correctness.
Further reading:
An overview of judicial review: https://www.pinsentmasons.com/out-law/guides/judicial-review
A case comment on Anisminic: https://www.administrativelawmatters.com/blog/2018/11/29/three-aspects-of-anisminic/
Judicial review to challenge government actions during COVID: https://www.telegraph.co.uk/news/2021/05/03/high-court-rejects-bid-bring-forward-reopening-indoor-hospitality/