Limitations of Judicial Review in the UK Legal System

Key Takeaways

Judicial review is concerned with the lawfulness of a decision, action, or failure to act. It is not usually a way to ask the court to decide whether a public authority made the “best” or fairest decision.

Claims must be brought quickly. In most cases, a judicial review claim must be filed promptly and no later than three months after the grounds for the claim first arose. Some cases have shorter deadlines, including many planning and procurement challenges.

Judicial review generally applies to public bodies and to decisions involving public functions. Private organisations are not automatically subject to judicial review, although they may be reviewable where they are exercising public powers or performing public functions.

The process can be costly and procedurally demanding. Permission is required before a claim can proceed, and claimants may face court fees, legal costs, and adverse costs risks if the claim fails.

Judicial review is a powerful tool for accountability, but it has constitutional limits. Courts supervise legality; they do not normally take over the role of government, Parliament, tribunals, or public decision-makers.

What Is Judicial Review?

Judicial review is a legal process through which the courts examine whether a public body has acted lawfully. It allows individuals, businesses, charities, and other organisations to challenge decisions, actions, or failures to act by public authorities.

Common examples include challenges to decisions made by government departments, local authorities, immigration authorities, regulatory bodies, NHS bodies, prisons, police forces, and some tribunals. In certain circumstances, judicial review may also apply to private organisations where they are carrying out a public function.

Judicial review plays an important role in maintaining the rule of law. It helps ensure that public authorities act within their legal powers, follow fair procedures, take relevant matters into account, avoid irrational decisions, and comply with applicable human rights obligations.

However, judicial review is not unlimited. It is not a general appeal against every disappointing or unfair outcome. The court’s role is supervisory, not administrative. This means the court reviews the lawfulness of the decision-making process and the legal basis of the decision, rather than simply replacing the public authority’s decision with its own.

Judicial Review Is About Lawfulness, Not a Full Merits Appeal

One of the most important limitations of judicial review is that it is not usually a full appeal on the merits of a decision.

In an appeal, a court or tribunal may be able to reconsider the facts, weigh the evidence again, and decide whether the original decision was right or wrong. Judicial review is different. The court asks whether the decision was lawful.

• This may include considering whether:
• The decision-maker acted within the powers given to them by law.
• The correct legal test was applied.
• Relevant considerations were taken into account.
• Irrelevant considerations were excluded.
• The decision was procedurally fair.
• The decision was irrational or unreasonable in the legal sense.
• The decision was compatible with human rights or equality duties where relevant.
• This distinction is important. A claimant may strongly disagree with a public authority’s decision, but disagreement alone is not enough. The claimant must identify a legal error.

For example, a court will not normally overturn a decision simply because it would have reached a different conclusion. However, the court may intervene if the decision-maker misunderstood the law, failed to consider important evidence, acted unfairly, or reached a conclusion that no reasonable decision-maker could lawfully reach.

This limitation protects the separation of powers. Courts are not there to run public services, make policy choices, or allocate public resources. Their role is to ensure that public bodies act lawfully.

Judicial Review Usually Applies Only to Public Law Decisions

Judicial review is mainly used to challenge decisions made by public authorities or bodies exercising public functions. This means it does not apply to every organisation or decision that affects the public.

• Public bodies may include:
• Government departments.
• Ministers.
• Local authorities.
• Immigration authorities.
• NHS bodies.
• Police forces.
• Prison authorities.
• Regulators.
• Courts and tribunals in certain contexts.
• Educational bodies exercising public functions.

Some private organisations may also be subject to judicial review if they are performing a public function. For example, a private company running a prison or delivering a function on behalf of the state may be subject to public law duties in relation to that function.

However, a private organisation is not subject to judicial review simply because it is powerful, influential, or has a major impact on people’s lives. The key question is whether the decision being challenged has a sufficiently public law character.

This can create difficulties. Some private bodies make decisions that significantly affect individuals, consumers, workers, or communities, but those decisions may still fall outside judicial review if they are not public law decisions. In those situations, other legal routes may need to be considered, such as contract law, employment law, consumer law, regulatory complaints, ombudsman complaints, or statutory appeals.

Strict Time Limits Apply

Judicial review claims must be brought quickly. In most cases in England and Wales, a claim must be filed promptly and in any event no later than three months after the grounds for the claim first arose.

The word “promptly” is important. A claimant should not assume that they can safely wait for the full three-month period. In urgent cases, or where delay may prejudice the public authority or third parties, the court may expect action much sooner.

Some types of judicial review have shorter time limits. For example, many planning judicial reviews must be brought within six weeks. Procurement-related challenges may have very short deadlines, often requiring action within 30 days or within the specific statutory timeframe that applies to the procurement decision.

Missing a deadline can be fatal to a claim. The court has limited discretion to extend time, but extensions should never be relied upon. Anyone considering judicial review should seek legal advice as early as possible.

Delay can also affect practical remedies. Even where a claim is legally arguable, the court may be less willing to grant relief if the claimant waited too long and the public authority or third parties have already acted on the decision.

Permission Is Required Before the Case Can Proceed

Judicial review claims do not automatically go to a full hearing. The claimant must first obtain permission from the court.

The permission stage is designed to filter out claims that are not properly arguable. The claimant must show that they have a sufficient interest in the matter and that the claim has an arguable public law basis with a realistic prospect of success.

This permission requirement is an important procedural limitation. It prevents the court system from being overwhelmed by weak or unmeritorious claims. However, it can also be a difficult hurdle for claimants, especially where the legal issues are complex or urgent.

If permission is refused on the papers, the claimant may sometimes request an oral renewal hearing. However, where a claim is certified as “totally without merit”, the claimant’s ability to continue the permission process is restricted.

This makes it essential to prepare judicial review claims carefully from the outset. The grounds must be clear, legally focused, and supported by evidence.

Judicial Review Can Be Expensive

Judicial review can be financially challenging. Costs may include court fees, solicitor fees, barrister fees, expert evidence, transcript costs, and the risk of paying some of the other side’s costs if the claim is unsuccessful.

Although legal aid may be available in some cases, it is subject to strict financial eligibility and merits tests. Not every claimant will qualify. Even where legal aid is available, the process can still be stressful and demanding.

Costs risk is often one of the biggest concerns for individuals, charities, campaign groups, and small businesses. In some cases, protective costs orders or costs-capping arrangements may be available, particularly in public interest cases or certain environmental claims. However, these protections are not automatic.

The cost of judicial review can therefore limit access to justice. A person may have a legally arguable case but still hesitate to proceed because of the financial risk.

Judicial Review Is Usually a Remedy of Last Resort

Judicial review is generally not available where there is an adequate alternative remedy. If Parliament has created a specific appeal process, complaints process, tribunal route, or statutory review mechanism, the court will usually expect the claimant to use that route first.

For example, in immigration, planning, benefits, education, tax, and regulatory matters, there may be specific appeal or review procedures that must be followed before judicial review is considered.

This limitation exists because judicial review is a supervisory remedy. It is not designed to replace specialist tribunals, statutory appeal bodies, or complaints systems.

However, there are exceptions. Judicial review may still be appropriate where the alternative remedy is inadequate, too slow, unable to address the legal issue, or where urgent interim relief is needed.

A careful assessment is therefore needed before starting a claim. Bringing judicial review too early, without exhausting appropriate alternative remedies, can lead to refusal of permission and potential costs consequences.

Parliamentary Sovereignty Limits What Courts Can Do

In the UK constitutional system, Parliament is sovereign. This means courts cannot strike down or invalidate Acts of Parliament in the same way that constitutional courts can in some other legal systems.

If a claimant argues that an Act of Parliament is unfair, unjust, or incompatible with international obligations, the court’s powers are limited. Courts may interpret legislation where possible in a way that is compatible with human rights. In certain cases, senior courts may issue a declaration of incompatibility under the Human Rights Act 1998.

However, a declaration of incompatibility does not invalidate the Act of Parliament. The legislation continues to have legal effect unless and until Parliament decides to amend it.

This is a major constitutional limitation of judicial review. The courts can control unlawful executive action, but they cannot generally override primary legislation passed by Parliament.

The Court’s Remedies Are Discretionary

Even if a claimant proves that a public authority acted unlawfully, the court does not have to grant the remedy requested.

Judicial review remedies are discretionary. The court may consider factors such as delay, the claimant’s conduct, the effect on third parties, whether the outcome would have been substantially different, and the wider public interest.

Common remedies include:

• A quashing order, which sets aside the unlawful decision.
• A mandatory order, requiring the public authority to do something.
• A prohibiting order, preventing the public authority from acting unlawfully.
• A declaration, stating the legal position.
• An injunction, requiring a party to do or not do something.
• Damages, although these are not usually the main remedy in judicial review and are only available where a separate legal basis exists.

In some cases, the court may find an error but refuse a remedy because the error made no real difference to the outcome. This can be frustrating for claimants, but it reflects the court’s discretionary and supervisory role.

Some Areas Are More Difficult to Challenge

Certain decisions are more difficult to challenge because they involve high-level policy, national security, foreign affairs, allocation of public resources, or matters traditionally considered politically sensitive.

This does not mean such decisions are completely immune from judicial review. Modern public law recognises that even prerogative powers and politically sensitive decisions may be reviewable where legal limits are exceeded.

A well-known example is the Supreme Court’s decision concerning the prorogation of Parliament in 2019. The Court held that the issue was justiciable and that the advice to prorogue Parliament was unlawful.

However, the intensity of review may vary depending on the context. Courts may be more cautious where decisions involve complex policy judgments, national security assessments, or democratic accountability. They will still ensure that legal limits are respected, but they are unlikely to substitute their own policy views for those of the decision-maker.

Judicial Review Does Not Always Provide a Complete Practical Solution

Another limitation of judicial review is that a successful claim does not always produce the practical outcome the claimant wants.

If a decision is quashed, the matter may be sent back to the public authority to be reconsidered. The authority must then make a fresh lawful decision. However, it may still reach the same conclusion, provided it does so lawfully.

For example, if a claimant successfully challenges a refusal decision because the authority failed to consider relevant evidence, the court may quash the refusal. The authority may then reconsider the matter properly but still refuse the application.

This means judicial review is often about securing a lawful decision-making process rather than guaranteeing a particular final result.

Why These Limitations Matter

Judicial review is one of the most important legal mechanisms for holding public authorities accountable. It protects individuals from unlawful decision-making and helps maintain the rule of law.

At the same time, it is deliberately limited. The courts do not act as a general complaints body. They do not decide every dispute about fairness, policy, or public administration. They intervene where there is a public law error.

Understanding these limitations is essential before starting a claim. A strong judicial review case requires more than dissatisfaction with the outcome. It requires clear legal grounds, prompt action, appropriate evidence, and careful preparation.

When Might Judicial Review Be Appropriate?

Judicial review may be appropriate where a public body has:

• Acted outside its legal powers.
• Misinterpreted the law.
• Failed to follow a fair procedure.
• Ignored relevant evidence.
• Taken irrelevant considerations into account.
• Reached an irrational decision.
• Breached legitimate expectations.
• Failed to give adequate reasons where reasons were legally required.
• Breached human rights.
• Failed to comply with equality duties.
• Unlawfully delayed making a decision.

Before bringing a claim, it is usually necessary to send a pre-action protocol letter. This letter explains the proposed claim, identifies the legal grounds, and gives the public authority an opportunity to respond before court proceedings are issued.

Because of the strict time limits, a pre-action letter should be sent quickly. Sending correspondence does not automatically stop time from running.

Get Expert Legal Guidance on Judicial Review

Judicial review can be complex, urgent, and procedurally demanding. The outcome of a case often depends on identifying the correct legal grounds, acting within the relevant deadline, and presenting the evidence clearly.

At Gulbenkian Andonian Solicitors, our experienced team can assist with assessing the strength of your case, preparing pre-action correspondence, advising on deadlines, and representing you throughout the judicial review process.

If you believe a public authority has acted unlawfully, it is important to seek legal advice as soon as possible. Early advice can help protect your position, avoid missed deadlines, and improve the prospects of resolving the matter effectively.

Contact Gulbenkian Andonian Solicitors today to discuss your case and explore your options.