What is Judicial Review?

Judicial review enables the judiciary to hold accountable the actions of the executive that may exceed the limits of their powers. There are three formally recognised grounds of review: illegality, irrationality and procedural impropriety.

Illegality: This ground functions with multiple aspects, including that the decision by the executive falls outside the scope of statutory powers and/or prerogative powers and that the decision was motivated by an improper purpose.

Irrationality: It works by claiming that even if an act fell within the scope of the law, it should still be unlawful because it was not rational. Lorde Greene MR in the Wednesbury Corporation case communicated that a decision should not be so absurd that no reasonable person would place it in the powers of the executive.

Procedural fairness: This requires that not only a decision be just but also the process followed to reach it. A just process includes no bias, a fair hearing and a justified reasoning behind a decision.

Facts

One particularly notable case of judicial review concerned the notice of withdrawal from the European Union (EU) by the government. They argued that it was under their ministerial prerogative to notify the EU under Article 50 of the Treaty of European Union (TEU) that the UK was leaving. However, this decision was contested as many believed they had overstepped their powers. The question that the Supreme Court were asked to consider was whether the formal notice of withdrawal was able to be given by ministerial prerogative if a member of Parliament had not approved it.

Issues

When the UK joined the EU, it brought a change in the domestic law as it meant that EU law would be supreme. Although the decision to join was taken by a minister, the only way EU law became imbedded into domestic law was through an Act of Parliament. It was done through the European Communities (EC) Act 1972. Leaving the EU would change domestic law as the EU law would no longer apply to the citizens of the UK. The main issue therefore was whether the ministerial prerogative reaches far enough to enable a change in domestic law without an Act of Parliament.

Decision

The court held, by a majority, that the government did not have the power to trigger Article 50 of the TEU and exercise its prerogative power. They argued that the authority of primary legislation was required to trigger the process of leaving the EU. This was because although the executive had the power to enter into international treaties, it could not use its powers to change domestic law. Such changes in the domestic law would require parliamentary approval as Parliament is sovereign and represents the will of the people. They emphasised that the EC Act, which was used to make EU law supreme, did not allow the ministerial prerogative to be stretched to allow such a change in domestic law. This goes back to the illegality aspect of judicial review as this decision by the executive fell widely out of their scope of ministerial powers. The ground of irrationality could also be invoked as allowing a ministerial decision to change domestic law seems absurd and unreasonable as it would likely not represent the will of the citizens. The whole aim of the judicial review in this case was not to decide whether leaving the EU was the correct decision or not but rather to examine the process in which the decision was taken. The dissenting judges, however, did not have an issue with the exercise of the ministerial prerogative because they argued that the vote was to leave the EU and so the EC Act enabled this decision. However, the decision showed the importance of judicial review as it did not allow the ministers to act beyond their powers.

By Aaliyah Ahmed, a student of the University of Southampton