Constitutional and Administrative Law

In the last chapter, we saw that judicial review is not the same as an appeal against a lower court’s decision. The courts will only intervene in the operation of a public function on the basis of particular criteria. The longest-established and least controversial of these criteria is illegality, which primarily involves the courts checking that lawful authority exists for a decision maker’s actions (fundamental to even the most limited conceptions of the rule of law). The courts, however, have developed further grounds for judicial review beyond this core function. Even if a public body has lawful authority for an action, the courts may still scrutinise its activity on the basis that there was no rational basis for the action (controversially requiring the courts to consider the reasoning behind a decision) or on the basis that adequate procedural safeguards were not operative within the decision-making process (which can, equally controversially, involve the courts introducing procedural requirements upon exercises of a power beyond those imposed by Parliament). In recent decades judicial review has been further extended to protect the interests of claimants who received specific promises from a decision maker, preventing that public body from reneging upon those promises without good reason.