Judicial Review Process

Judicial review is the way in which the Executive power may be challenged in the United Kingdom as set out in the Civil Procedure Rules. This process is one of the means of legal redress against public bodies to make sure that they are legally accountable for their decisions and that they do act outside the law as held in Entick v Carrington. The role of judicial review is not to re-make the decision being challenged but to review the process of how that decision was reached. To bring a claim an interested party must show that they have a sufficient interest in the matter to achieve standing. There are three grounds that judicial review can be claimed which are illegality, irrationality, and procedural impropriety as stated by Lord Diplock

The Wednesbury test has said to be inadequate as it does not provide enough justification for judicial intervention, it seeks to prevent review except for in cases where the official has acted absurdly, and what is considered as unreasonable has not been acutely defined. The Wednesbury test also offers less scrutiny of public bodies, which can cause decisions to be incorrect. In addition, when considering human rights cases there has been overlap between irrationality and proportionality claims. Proportionality is used in European Union law and ensures that a public body does not go beyond what is necessary to achieve a certain decision. To be proportionate a decision must be necessary, appropriate, and not cause an excessive burden on those affected by it. The difference between the approaches of proportionality and irrationality tests was shown in R (Daly) v Secretary of State for the Home Department. In this case, it was held that the policy in question infringed on section 47 of the Prison Act 1952 and article 8 of the European Convention. The Wednesbury test was used to show the unreasonableness of the decision but Lord Cooke stated that such a test was regressive as it did not consider the wider impact that it would have. Instead Lord Steyn used the test for proportionality that considers whether the objective was important enough to rationalize limiting a fundamental right, if the measures used were rational, if the means used were no more than necessary, and if there was a balance between the rights of the individual and the community. The proportionality test offers a more intensive review of the matter at hand rather than that of the Wednesbury test. This is not to say that the Wednesbury test is unreliable, but that perhaps it is not as thorough as it could be due to its vague justification. Lord