With case examples, explore how judicial review is a highly successful way of holding governments to account

Introduction

Judicial review serves as a cornerstone of the UK’s constitutional framework, enabling courts to scrutinise the actions of public bodies, including the government, to ensure they act within the bounds of the law. In the context of a Bachelor of Law (LLB) programme at the University of London, this mechanism is studied as a vital tool for upholding the rule of law and preventing arbitrary exercises of power. This essay explores how judicial review is a highly successful means of holding governments to account, drawing on key case examples to illustrate its effectiveness. It begins by outlining the foundational principles of judicial review, followed by an analysis of landmark cases that demonstrate its impact. While acknowledging some limitations, the essay argues that judicial review’s ability to enforce accountability, protect rights, and maintain legal boundaries renders it highly successful overall. Through this examination, the discussion will highlight the balance between judicial oversight and democratic governance, supported by evidence from academic sources and official reports.

The Principles of Judicial Review in the UK

Judicial review in the UK operates under the common law tradition, where courts assess whether public authorities have exceeded their powers or acted unlawfully. As defined by the Senior Courts Act 1981, it allows individuals or groups to challenge decisions in the High Court on grounds established in Council of Civil Service Unions v Minister for the Civil Service (1985), commonly known as the GCHQ case. These grounds include illegality, where a decision-maker misinterprets the law; irrationality, involving decisions so unreasonable that no sensible authority could have made them; and procedural impropriety, encompassing failures in fairness or bias (Elliott and Thomas, 2020).

This framework is particularly effective in holding governments accountable because it empowers the judiciary to intervene without encroaching on parliamentary sovereignty. For instance, judicial review ensures that executive actions align with statutory limits, thereby preventing abuse of power. A report by the UK government’s Justice Committee (2019) emphasises that judicial review acts as a “safety valve” for grievances against the state, promoting transparency and good governance. Indeed, its success is evident in its application to diverse areas, from immigration to environmental policy, where courts have compelled governments to reconsider flawed decisions.

However, a critical approach reveals that judicial review is not without constraints. It is supervisory rather than appellate, meaning courts cannot substitute their own decisions but can only quash unlawful ones and remand them for reconsideration (Fordham, 2013). Despite this, the process often leads to policy adjustments, demonstrating its indirect but potent influence. Generally, this limited scope enhances its legitimacy, as it avoids overreach into political domains, aligning with the UK’s uncodified constitution.

Landmark Case Examples Illustrating Success

To evaluate the success of judicial review, it is essential to examine specific cases where it has effectively held governments to account. One prominent example is R (Factortame Ltd) v Secretary of State for Transport (No 2) (1991), which challenged the UK’s Merchant Shipping Act 1988. Spanish fishermen argued that the Act’s nationality requirements discriminated against them, violating European Community law. The House of Lords, referring the matter to the European Court of Justice, ultimately granted an interim injunction suspending parts of the Act. This case exemplifies judicial review’s success in enforcing supremacy of EU law (at the time) over domestic legislation, forcing the government to amend discriminatory policies (Craig, 2018). The outcome not only protected economic rights but also underscored the judiciary’s role in checking executive overreach, leading to compensation for affected parties and reinforcing accountability.

Another illustrative case is R (Miller) v Secretary of State for Exiting the European Union (2017), often referred to as the Article 50 case. Here, the Supreme Court ruled that the government could not trigger Article 50 of the Treaty on European Union to initiate Brexit without parliamentary approval. The court’s reasoning centred on the principle that significant constitutional changes require legislative authorisation, preventing the executive from bypassing Parliament (Elliott, 2017). This decision compelled the government to introduce the European Union (Notification of Withdrawal) Act 2017, thereby ensuring democratic oversight. Critics might argue that the case highlighted tensions between judiciary and executive, yet it successfully held the government accountable by upholding constitutional norms. As noted in a House of Lords report (2017), such interventions maintain the balance of powers, preventing unilateral actions that could undermine democratic processes.

Furthermore, judicial review has proven successful in human rights contexts, as seen in R (A) v Secretary of State for the Home Department (2004), the Belmarsh case. Detainees challenged their indefinite detention under the Anti-terrorism, Crime and Security Act 2001, arguing it violated the European Convention on Human Rights (ECHR). The House of Lords declared the provisions incompatible with the ECHR, prompting the government to replace them with control orders under the Prevention of Terrorism Act 2005 (Dickson, 2006). This case demonstrates judicial review’s effectiveness in safeguarding individual liberties against security-driven policies, forcing legislative reforms. Arguably, it illustrates how courts can evaluate complex national security decisions without compromising their judicial role, as the government ultimately complied, enhancing accountability.

These examples collectively show judicial review’s ability to address a range of governmental actions, from economic policy to counter-terrorism. They draw on primary sources like court judgments and secondary analyses, revealing a pattern where judicial intervention leads to tangible changes. However, a balanced evaluation must consider that not all claims succeed; success rates hover around 40% according to judicial statistics (Ministry of Justice, 2022), indicating selectivity that bolsters the mechanism’s credibility.

Limitations and Broader Implications

While judicial review is highly successful, it is important to address its limitations to provide a critical perspective. One key criticism is the potential for judicial overreach, where courts might encroach on policy-making, as debated in academic literature (Bell, 2019). For example, in R (Privacy International) v Investigatory Powers Tribunal (2019), the Supreme Court affirmed its jurisdiction over tribunal decisions, raising concerns about expanding judicial power. Critics argue this could undermine democratic accountability, yet the case ultimately reinforced oversight of surveillance powers, compelling the government to justify intrusive measures.

Another limitation is accessibility; high costs and procedural hurdles can deter claimants, as highlighted in a Law Commission report (2021). Typically, this disproportionately affects marginalised groups, potentially limiting judicial review’s reach. Nevertheless, reforms like the introduction of protective costs orders have mitigated some barriers, ensuring broader application.

Despite these challenges, judicial review’s success lies in its problem-solving capacity. It identifies flaws in governmental decision-making and draws on legal resources to address them, as evidenced by the cases discussed. In terms of specialist skills, LLB students learn to apply these principles through moot courts and case analyses, fostering an understanding of how judicial review upholds the rule of law.

Conclusion

In summary, judicial review stands as a highly successful mechanism for holding UK governments to account, as demonstrated by cases like Factortame, Miller, and Belmarsh, which have enforced legal boundaries, protected rights, and prompted policy reforms. Through principles of illegality, irrationality, and procedural fairness, it provides a structured means of scrutiny that balances judicial intervention with democratic processes. While limitations such as accessibility and potential overreach exist, they do not overshadow its overall effectiveness in promoting transparency and accountability. The implications are profound for constitutional law, ensuring that executive power remains checked in an era of complex governance challenges. As students of the University of London LLB programme, engaging with these dynamics underscores the enduring value of judicial review in safeguarding the rule of law.

References

• Bell, J. (2019) Judicial Review in an Age of Moral Pluralism. Cambridge University Press.
• Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
• Craig, P. (2018) UK, EU and Global Administrative Law: Foundations and Challenges. Oxford University Press.
• Dickson, B. (2006) ‘Safeguarding human rights in the age of terror: The UK’s experience’, Northern Ireland Legal Quarterly, 57(2), pp. 203-228.
• Elliott, M. (2017) ‘The Supreme Court’s judgment in Miller: In search of constitutional principles’, Cambridge Law Journal, 76(2), pp. 257-288.
• Elliott, M. and Thomas, R. (2020) Public Law. 4th edn. Oxford University Press.
• Fordham, M. (2013) Judicial Review Handbook. 6th edn. Hart Publishing.
• House of Lords (2017) Brexit: Parliamentary Scrutiny. European Union Committee.
• Justice Committee (2019) Court and Tribunal Reforms. House of Commons.
• Law Commission (2021) Judicial Review Consultation. Law Commission of England and Wales.
• Ministry of Justice (2022) Civil Justice Statistics Quarterly. UK Government.
• R (A) v Secretary of State for the Home Department [2004] UKHL 56.
• R (Factortame Ltd) v Secretary of State for Transport (No 2) [1991] 1 AC 603.
• R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5.
• R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.
• Senior Courts Act 1981. London: HMSO.

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