Introduction to judicial review and its scope

Judicial review is the principal mechanism by which English administrative law controls the exercise of public power. It is a supervisory jurisdiction: the High Court scrutinises the lawfulness of decisions, acts, and omissions of public bodies, but does not itself make primary decisions on the merits. This distinction is foundational. As Lord Brightman observed in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155, 1173, judicial review is 'concerned, not with the decision, but with the decision-making process.'

The scope of judicial review encompasses three overlapping questions: (1) which bodies and decisions are susceptible to review (amenability); (2) which individuals have standing to bring proceedings (locus standi); and (3) which grounds of challenge are recognised by the courts (illegality, irrationality, and procedural impropriety, per Lord Diplock's canonical formulation in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case), supplemented now by proportionality in certain contexts).

This note introduces the constitutional foundations, historical evolution, and contemporary debates that frame the study of judicial review. Understanding scope is essential because judicial review is both powerful—a cornerstone of the rule of law—and constrained by justiciability, deference, and remedial discretion. Week 1 establishes the conceptual architecture upon which the entire course rests.

Core learning outcomes:

• Understand the supervisory, not appellate, nature of judicial review
• Identify the constitutional justifications for judicial review
• Grasp the concepts of amenability, standing, and grounds
• Appreciate the historical trajectory from prerogative writs to the modern CPR Part 54 procedure
• Recognise the tension between judicial intervention and separation of powers

Judicial review's origins lie in the Crown's supervisory jurisdiction over inferior courts and public bodies. The medieval prerogative writs—certiorari, prohibition, and mandamus—enabled the King's Bench to quash unlawful decisions, restrain excess of jurisdiction, and compel the performance of public duties. The writs developed incrementally, shaped by formalism and the limited ambit of the early modern state.

The prerogative writs

Certiorari quashed decisions of bodies acting judicially or quasi-judicially; prohibition prevented such bodies from exceeding jurisdiction; mandamus compelled the performance of public duties where a legal obligation existed and no other remedy was adequate. These remedies were discretionary, technical, and beset by procedural archaisms (short time limits, preclusive rules on discovery, no cross-examination).

By the mid-twentieth century, the writs' inflexibility hindered access to justice. Reform was catalysed by the Law Commission and the expansion of the administrative state. In 1977, RSC Order 53 introduced the 'application for judicial review', a unified procedure consolidating the prerogative orders and certain private law remedies (declaration and injunction) within a single proceeding. This reform, implemented following recommendations in the Law Commission Report No. 73 (1976), created the modern architecture of judicial review.

The Senior Courts Act 1981 and CPR Part 54

Section 31 of the Senior Courts Act 1981 (formerly the Supreme Court Act 1981) codified the reformed procedure, conferring jurisdiction on the High Court to grant prerogative orders (renamed 'mandatory orders', 'prohibiting orders', and 'quashing orders'), declarations, and injunctions in judicial review proceedings. The provisions on standing, time limits, and leave (now 'permission') were enshrined in statute.

In 2000, the Civil Procedure Rules replaced RSC Order 53 with CPR Part 54, which governs judicial review today. The essential features remain: a two-stage process (permission followed by substantive hearing), a short time limit (promptly and in any event within three months, now six months in planning cases following amendment), a requirement for 'sufficient interest' (standing), and judicial discretion in granting remedies.

Significance of procedural reform

The unification of remedies and liberalisation of procedure enabled the courts to develop substantive grounds of review more dynamically. The shift from remedies to grounds—epitomised by Lord Diplock's tripartite taxonomy in GCHQ—reflects a maturation of administrative law from formalistic, writ-bound reasoning to principle-based scrutiny of public power.

The constitutional justification for judicial review is contested. Two principal theories dominate: the ultra vires doctrine and the common law model.

The ultra vires doctrine

The traditional view holds that judicial review polices the boundaries of statutory and prerogative power. A public body may act only within the powers conferred by Parliament (or, in the case of prerogative, recognised by the common law). Any decision exceeding those powers—ultra vires—is unlawful and void. On this account, the courts do not impose independent standards but enforce Parliament's implicit will: that decision-makers act lawfully, rationally, fairly, and for proper purposes.

Sir William Wade was the leading exponent of this view (Wade & Forsyth, Administrative Law, 11th edn (Oxford: OUP 2014)). Wade argued that ultra vires grounds parliamentary sovereignty: judges defer to legislative intent. If Parliament authorises a minister to grant licences, it implicitly requires the minister to exercise that power rationally, fairly, and in accordance with the statute's purposes. The doctrine provides a formal basis for intervention consistent with the sovereignty of Parliament.

Critics, however, contend that the ultra vires model is a fig-leaf: many grounds of review—especially procedural fairness and Wednesbury unreasonableness—cannot plausibly be traced to legislative intent. Parliament does not 'intend' natural justice; the common law imposes it.

The common law model

An alternative theory, advanced notably by Sir John Laws, Dawn Oliver, and Paul Craig, holds that judicial review rests on common law foundations independent of parliamentary intent. On this view, the rule of law is a constitutional principle enforced by the courts. While the scope of a body's powers derives from statute, the standards by which those powers are reviewed—legality, rationality, fairness—are judge-made.

Foundation (knowledge and understanding)

1. What is the difference between judicial review and an appeal? Illustrate your answer with reference to at least two cases.

2. Explain the ultra vires doctrine. Why do some scholars reject it as the foundation of judicial review?

Standard (application and analysis)

3. 'The exclusivity principle established in O'Reilly v Mackman is incoherent and unworkable.' Discuss with reference to subsequent case law.

4. Assess the extent to which the prerogative is subject to judicial review. In your answer, consider both justiciability and intensity of review.

Challenge (synthesis and critical evaluation)

5. 'Judicial review in England rests on common law foundations, not legislative intent. The ultra vires doctrine is a fig-leaf masking judicial creativity.' Critically evaluate this claim, engaging with relevant academic literature and case law.

Essential

• Wade, HWR & Forsyth, CF, Administrative Law (11th edn, Oxford: OUP 2014) ch 1 (Introduction) and ch 2 (The Development of Judicial Review)
• Craig, PP, Administrative Law (9th edn, London: Sweet & Maxwell 2021) ch 1 (The Nature and Purpose of Administrative Law) and ch 12 (The Availability of Judicial Review)
• Jowell, J, 'The Rule of Law and its Underlying Values' in Jowell, J & Oliver, D (eds), The Changing Constitution (8th edn, Oxford: OUP 2015)

Academic articles and chapters

• Craig, PP, 'Ultra Vires and the Foundations of Judicial Review' (1998) 57 Cambridge Law Journal 63
• Forsyth, C, 'Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review' (1996) 55 Cambridge Law Journal 122
• Elliott, M, 'The Ultra Vires Doctrine in a Constitutional Setting: Still the Central Principle of Administrative Law' (1999) 58 Cambridge Law Journal 129
• Laws, Sir John, 'Law and Democracy' [1995] Public Law 72
• Allan, TRS, 'The Constitutional Foundations of Judicial Review: Conceptual Conundrum or Interpretative Inquiry?' (2002) 61 Cambridge Law Journal 87

Monographs and further depth

• Bingham, T, The Rule of Law (London: Allen Lane 2010)
• Elliott, M & Thomas, R, Public Law (4th edn, Oxford: OUP 2020) chs 1, 3, 15
• Fordham, M, Judicial Review Handbook (7th edn, Oxford: Hart 2020) Parts I–II

Advanced/comparative

• Craig, PP, 'Judicial Review, Appeal and Factual Error' [2004] Public Law 788
• Jowell, J, 'Judicial Deference and Human Rights: A Question of Competence' in Craig, PP & Rawlings, R (eds), Law and Administration in Europe (Oxford: OUP 2003)