Judicial review is a cornerstone of the UK constitution, providing a mechanism for the courts to scrutinise the actions of public bodies and ensure they act within the powers granted to them by Parliament. It is a vital tool for upholding the rule of law. However, the power of the courts in this area is not unlimited. This essay will outline and explain some of the key limitations on the scope and effectiveness of judicial review in England and Wales. The main limitations to be explored are procedural hurdles, the courts' reluctance to review certain types of decisions, and attempts by Parliament to exclude judicial oversight.
Procedural Limitations
One of the first barriers a potential claimant faces is a set of procedural rules designed to filter out unmeritorious or delayed claims. A claimant must have ‘sufficient interest’ in the matter to which the application relates, a concept known as standing or locus standi (Senior Courts Act 1981, s.31(3)). While the courts have sometimes adopted a liberal approach to standing, as seen in cases concerning environmental or public interest issues, the requirement can still prevent individuals or groups from bringing a challenge if they cannot demonstrate a direct and personal interest (Harlow and Rawlings, 2014). For example, the House of Lords in R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 established that the question of standing had to be considered in the context of the whole case. In addition to standing, claims must be brought promptly and in any event within three months, a very strict time limit that can be difficult to meet. Finally, a claimant must seek permission (or leave) from the court to proceed, and the court will only grant this if it is satisfied there is an arguable case with a realistic prospect of success. These procedural hurdles, while necessary to prevent the courts being overwhelmed, act as a significant initial limitation on access to judicial review.
Justiciability and Deference
A further limitation is the principle of justiciability. This judicial doctrine holds that there are certain areas of government decision-making that the courts are not constitutionally or practically equipped to review. The traditional view was that decisions made under the Royal Prerogative were immune from review. However, the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 (the GCHQ case) held that the source of the power does not automatically mean it is non-justiciable; rather, it is the subject matter of the decision that is key. Lord Roskill identified categories of prerogative powers which are, by their nature, non-justiciable, including matters of national security, treaty-making, defence, and the grant of honours. In such cases, the courts exercise deference, acknowledging that executive bodies have greater expertise and institutional competence. While the courts have shown an increasing willingness to review decisions even in sensitive areas, particularly where human rights are engaged, the principle remains that judges will not substitute their own view for that of the executive on matters of high policy, thus limiting the reach of judicial review.
Ouster Clauses
Parliament may also attempt to limit or completely exclude the jurisdiction of the courts through legislation, using what is known as an ouster clause. These clauses create a constitutional tension between two fundamental principles: parliamentary sovereignty (the idea that Parliament can legislate on any matter) and the rule of law (which requires executive action to be subject to legal scrutiny). The courts have traditionally shown a strong resistance to ouster clauses, often interpreting them so narrowly as to rob them of their intended effect. The landmark case is Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, where the House of Lords held that a clause stating a determination "shall not be called in question in any court of law" did not protect a determination that was, legally speaking, a nullity because it was based on an error of law. More recently, in R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, the Supreme Court affirmed this strong presumption against ousting the supervisory jurisdiction of the High Court. Despite this judicial hostility, Parliament continues to enact such clauses, and they remain a potential, if contested, limitation on judicial review.
In conclusion, while judicial review plays a crucial role in maintaining accountability and legality in government, its power is constrained. Procedural requirements on standing and time limits can prevent cases from being heard at all. The doctrine of non-justiciability means that certain sensitive areas of government policy, particularly concerning national security and the prerogative, are effectively off-limits to the courts. Finally, although the judiciary robustly defends its jurisdiction, the ever-present possibility of parliamentary ouster clauses serves as a constant reminder of the constitutional limits placed on the judiciary in its relationship with a sovereign Parliament. These limitations ensure that judicial review, while powerful, does not extend into an unrestricted power to challenge any and all government action.
References
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147.
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374.
Harlow, C. and Rawlings, R. (2014) Law and Administration. 3rd edn. Cambridge University Press.
R v Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617.
R (Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22.
Senior Courts Act 1981.
