Judicial Review and the Judiciary's Power Over Government
Judicial review is the process by which the courts examine whether a decision or action of a public body was made lawfully, on the grounds of illegality, irrationality (the Wednesbury unreasonableness test) or procedural impropriety.
Before you start
Make sure you're comfortable with these topics first:
Method
- Learn the three grounds of judicial review (illegality, irrationality, procedural impropriety) and one example of what each looks like in practice.
- Learn the GCHQ case and both Miller cases in enough detail to state what was decided and why, not just that 'the government lost'.
- Learn the limits of judicial review: it cannot strike down primary legislation, only secondary legislation or executive/prerogative action, because Parliament remains legally sovereign.
- For an evaluation of how much power judicial review gives the judiciary, plan three two-sided paragraphs weighing a case or example showing real impact against a genuine limitation.
- Give each paragraph a clear judgement before moving on; a paragraph that only lists cases the government lost, with no counterpoint about the limits of review, is capped in the middle band.
- Build a thesis-led introduction and a conclusion that weighs the three judgements to reach an overall, supported answer on how much power judicial review really transfers to the courts.
- Distinguish clearly, in your own writing, between judicial review, reviewing the lawfulness of a decision, and an appeal, reviewing the merits of a decision, since confusing the two is a common error.
Worked example
'Judicial review is an effective check on the power of the executive.' Evaluate this statement, using the Miller cases in your answer. Plan the essay: a thesis, three two-sided paragraphs and a conclusion.
- Underline the claim: is judicial review effective, which needs evidence of real impact, not just a description of what it is.
- Choose three comparisons: (1) a concrete example, (2) the scope of judicial review, (3) its limits against a sovereign Parliament.
- Paragraph 1: in the 2019 Miller case the Supreme Court found the prorogation of Parliament unlawful and void, directly reversing the government's action, weighed against the counterpoint that the government complied and Parliament was still, in the end, prorogued again shortly afterwards for a normal, lawful period, then a judgement.
- Paragraph 2: judicial review can be brought against almost any public body on grounds of illegality, irrationality or procedural impropriety, giving it very broad reach, weighed against the counterpoint that courts review only the lawfulness of the process, not the merits of the policy, so government usually retains room to achieve the same goal through a lawful route, then a judgement.
- Paragraph 3: judicial review operates within a system of parliamentary sovereignty, so courts cannot strike down a valid Act of Parliament, weighed against the counterpoint that this still leaves prerogative powers and secondary legislation, which cover a huge amount of day-to-day executive action, fully open to challenge, then a judgement.
- Write a thesis and a conclusion that gives an overall, evidenced answer on how effective a check judicial review really is.
Practice questions
Try each question, then tap to reveal the answer.
Q1What is judicial review?Show answer
Answer: The process by which the courts examine whether a decision or action of a public body was made lawfully, considering its legality, rationality and the fairness of the procedure used, rather than whether the decision itself was the right one.
Q2What is meant by a body acting 'ultra vires'?Show answer
Answer: Acting beyond the legal powers that Parliament, or another source of law, has actually given it.
Q3Name the case that established that prerogative powers can, in principle, be subject to judicial review.Show answer
Answer: Council of Civil Service Unions v Minister for the Civil Service (1985), commonly known as the GCHQ case.
Q4What did the Supreme Court rule in R (Miller) v Secretary of State for Exiting the European Union (2017)?Show answer
Answer: That the government could not use prerogative power alone to trigger Article 50 and begin the process of leaving the EU; an Act of Parliament was required first.
Q5What did the Supreme Court rule in R (Miller) v The Prime Minister (2019)?Show answer
Answer: That the prorogation of Parliament for around five weeks was unlawful because it had the effect of frustrating Parliament's ability to carry out its constitutional functions without reasonable justification, and so the prorogation was void.
Q6What is the 'Wednesbury unreasonableness' test used for?Show answer
Answer: To decide whether a decision was so unreasonable that no reasonable public body could have made it, one of the grounds on which a decision can be found unlawful in judicial review.
Q7Can a UK court use judicial review to strike down an Act of Parliament?Show answer
Answer: No; because of parliamentary sovereignty, courts can review the lawfulness of secondary legislation and executive/prerogative action, but cannot strike down a valid Act of the UK Parliament itself.
Exam-style questions
Written in the style of a A Level Politics exam paper, with a full mark scheme.
Explain TWO grounds on which a court can find a decision by a public body unlawful in judicial review.
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'Judicial review makes the judiciary more powerful than the government.' Evaluate this statement.
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See real A Level Politics past-paper questions, with official mark schemes →
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