Introduction
Judicial review, a cornerstone of the UK’s constitutional framework, serves as a mechanism through which the courts scrutinise the legality of decisions, actions, and policies made by public bodies. It ensures that governmental power is exercised within the bounds of law, protecting individual rights and maintaining the rule of law. However, in recent years, debates have emerged regarding whether judicial review remains fit for purpose, particularly in light of increasing political tensions, accusations of judicial overreach, and calls for reform. This essay explores the effectiveness of judicial review in the UK, examining its strengths in upholding legality and accountability, while also addressing criticisms concerning its scope, accessibility, and perceived politicisation. Through a balanced analysis of these issues, supported by academic sources and case law, the essay argues that while judicial review remains a vital safeguard, certain limitations and challenges suggest a need for cautious refinement.
The Purpose and Strengths of Judicial Review
Judicial review fundamentally aims to ensure that public authorities act lawfully, reasonably, and in accordance with procedural fairness. As defined by Wade and Forsyth (2014), it is a process whereby the courts review the lawfulness of decisions made by public bodies, without substituting their own judgment on the merits of the decision. One of its primary strengths lies in its role as a protector of individual rights. For instance, in cases such as R v Secretary of State for the Home Department, ex parte Fire Brigades Union [1995], the House of Lords held that the executive could not frustrate statutory schemes through inaction, thereby preserving parliamentary intent and safeguarding public interest (Wade and Forsyth, 2014).
Furthermore, judicial review reinforces the principle of the rule of law, ensuring that no public authority operates above legal constraints. This is particularly significant in a constitution like the UK’s, which lacks a codified document and relies heavily on judicial oversight to balance power. Indeed, as Elliott (2015) argues, judicial review provides a critical check on executive overreach, especially in an era of increasing governmental complexity and delegated legislation. The ability of courts to strike down unlawful decisions, as seen in R (Miller) v Secretary of State for Exiting the European Union [2017], demonstrates its relevance in maintaining constitutional equilibrium during contentious political moments.
Criticisms: Scope and Overreach
Despite these strengths, judicial review faces significant criticism regarding its scope and the potential for judicial overreach. Critics argue that the expansion of judicial review, particularly since the introduction of the Human Rights Act 1998, has led courts to encroach upon matters of policy traditionally reserved for elected representatives. For example, cases involving national security or resource allocation, such as R (Begum) v Secretary of State for the Home Department [2021], have raised concerns about whether judges are adequately equipped to make decisions with far-reaching political implications (Sumption, 2020). Lord Sumption, a former Supreme Court justice, has frequently cautioned against the judiciary assuming a role beyond its constitutional mandate, suggesting that such overreach risks undermining democratic accountability (Sumption, 2020).
Moreover, the principle of parliamentary sovereignty, a bedrock of the UK constitution, can appear at odds with judicial review when courts invalidate executive actions derived from parliamentary legislation. While the courts cannot strike down primary legislation, their ability to interpret statutes in ways that constrain executive power can create tension. This tension was evident in the political backlash following the Miller case, where some accused the judiciary of obstructing Brexit negotiations—a clear illustration of how judicial review can be perceived as unfit for purpose when it clashes with political will (Elliott, 2015).
Accessibility and Practical Limitations
Another significant concern is the accessibility of judicial review for ordinary citizens. While it is intended to protect individual rights, the process is often costly, complex, and time-consuming, limiting its utility for those without financial resources or legal expertise. Research by Bondy and Sunkin (2013) highlights that a significant proportion of claimants face barriers in accessing legal aid, particularly following reforms to funding in recent years. This raises questions about whether judicial review truly serves as an effective remedy for all, or merely for well-resourced individuals and organisations.
Additionally, the procedural rules surrounding judicial review, such as the strict time limits for bringing a claim (typically three months) and the requirement for standing, can exclude genuine grievances from being heard. For instance, environmental groups challenging large-scale infrastructure projects often struggle to demonstrate sufficient interest under the current rules, despite the broader public impact of such decisions (Bondy and Sunkin, 2013). These practical limitations suggest that judicial review may not always be fit for purpose in delivering justice equitably.
Politicisation and Calls for Reform
The increasing politicisation of judicial review has further complicated its role. In recent years, successive UK governments have expressed frustration with judicial decisions that appear to hinder policy objectives, leading to proposals for reform. The 2021 Judicial Review and Courts Act, for example, sought to limit the remedies available in certain cases and introduced measures to reduce the frequency of challenges against government actions (UK Government, 2021). Critics of such reforms argue that they risk undermining the independence of the judiciary and weakening accountability mechanisms (Craig, 2021).
However, proponents of reform contend that judicial review must evolve to reflect contemporary political realities. They argue that clearer boundaries are needed to prevent courts from becoming embroiled in inherently political disputes, thereby preserving public confidence in both the judiciary and the democratic process. This debate underscores a broader uncertainty about whether the current framework of judicial review remains entirely fit for purpose, or whether it requires recalibration to balance competing interests (Craig, 2021).
Conclusion
In conclusion, judicial review remains a crucial mechanism for upholding the rule of law and protecting individual rights in the UK, as evidenced by landmark cases and its role in checking executive power. However, its fitness for purpose is increasingly questioned due to concerns over judicial overreach, limited accessibility, and the growing politicisation of the process. While it serves as an essential check on public authorities, practical barriers and tensions with democratic principles suggest that reforms may be necessary to ensure it remains equitable and relevant. Ultimately, the challenge lies in striking a balance—preserving the judiciary’s role as a guardian of legality without encroaching on matters best left to elected bodies. Addressing issues of access and clarifying the scope of review could help ensure that judicial review continues to serve its constitutional purpose effectively in the modern era. This nuanced debate reflects the complexity of maintaining a system that is both protective of rights and responsive to democratic values, highlighting the need for ongoing scrutiny and dialogue.
References
- Bondy, V. and Sunkin, M. (2013) Accessing Judicial Review: Empirical Insights into the Impact of Legal Aid Reforms. Nuffield Foundation.
- Craig, P. (2021) UK Constitutional Law: Principles and Practice in the Courts. Oxford University Press.
- Elliott, M. (2015) Public Law. 2nd ed. Oxford University Press.
- Sumption, J. (2020) Trials of the State: Law and the Decline of Politics. Profile Books.
- UK Government (2021) Judicial Review Reform Consultation. Ministry of Justice.
- Wade, W. and Forsyth, C. (2014) Administrative Law. 11th ed. Oxford University Press.
