In collaboration with our members, we have outlined some key principles that underpin judicial review:
- maintain checks and balances
- judicial independence
- accessibility and affordability
- effective remedies
1. maintaining checks and balances
The fundamental purpose of judicial review is to determine whether public authorities are acting in accordance with the laws enacted by parliament.
provides protection for people against state power and ensures that the government, public bodies and regulators can be held accountable.
Without an effective system of judicial review, other fundamental constitutional principles, such as parliamentary sovereignty, will be undermined.
Its essential contribution to upholding the rule of law and the principles of democracy within the broader constitutional system should not be diminished.
Ensuring that it remains an effective and accessible mechanism to hold government, public bodies and regulators accountable (in accordance with laws enacted by parliament) must be the cornerstone of any potential reform.
2. judicial independence
Judicial review brings law and politics into close contact. a mature democracy must be prepared to deal with these tensions.
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judges must be free to exercise their functions in judicial review:
- without fear or favour
- away from political considerations and criticism
- without assuming that they have an agenda beyond their law enforcement function
- public bodies
This allows them to fulfill their constitutional role and effectively enforce the rights of individuals and organizations.
judicial review focuses on making decisions on:
A judicial review case addresses whether these bodies use their powers in accordance with the law. as such, judicial review must be available to all affected by the decisions of these bodies.
This includes citizens and non-citizens, where applicable, such as immigration cases or where a company has business interests in the UK.
Organizations such as charities or trade unions should also be able to act, within reasonable limits, in the interests of the people, bodies or issues they represent.
They should be able to do this by initiating or intervening in lawsuits for judicial review.
4. accessibility and affordability
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There should be no excessive procedural hurdles that would act as a barrier to filing a claim.
The need for quick resolution and sufficient opportunity to file a claim must be properly balanced.
To be fully accessible, filing for judicial review must also be affordable.
Where people lack their own financial means, adequate levels of legal aid should be provided to ensure equal access to the courts to enforce their rights.
Awarding costs and court costs should not be so punitive or excessively burdensome as to prevent claims from being filed.
Because judicial review looks at decisions made by public bodies, it often touches on decisions that can be political or seen as political.
As the mandate of the state has expanded, so has the breadth of decisions subject to judicial review.
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It is not the function of the courts to question political decisions, and judicial review must not encroach on the legitimate use of state power. judges are sensitive to this and can, and routinely do, make decisions about what is beyond the scope of judicial review.
however, there should be no artificial or inconsistent restrictions on the type of decisions that can be reviewed.
where there are legal issues, the court should be able to rightly decide that these and certain issues, or categories of issues, should not be excluded from judicial review.
Given the power imbalance between individuals and the state, it is important that people have a meaningful ability to challenge decisions that affect their lives and legal rights, to ensure that they have been made lawfully.
For judicial review to function effectively as a last resort, there must be adequate alternative mechanisms for people to assert their rights.
6. effective remedies
The circumstances of judicial review cases are very varied. no two cases are the same, so what will be a fair result in one will not necessarily be fair in another.
Judges must have a range of resources at their disposal, and the discretion to grant them, to ensure that justice is served in a meaningful way.