How does judicial review play in limiting the power of government?

Table of Contents Show

1. Maintaining checks and balances
2. Judicial independence
3. Eligibility
4. Accessibility and affordability
6. Effective remedies
1. The Judiciary
2. The Executive
3. The Legislature

Judicial review is the idea, fundamental to the US system of government, that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judiciary. Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution.

The text of the Constitution does not contain a specific provision for the power of judicial review. Rather, the power to declare laws unconstitutional has been deemed an implied power, derived from Article III and Article VI of the U.S. Constitution. Judicial review of the government was established in the landmark decision of Marbury v. Madison, the first Supreme Court decision to strike down the act of Congress as unconstitutional, with the famous line from Chief Justice John Marshall: "It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each."

Last updated in June of 2017 by Stephanie Jurkowski

Last updated June 10, 2019 by Krystyna Blokhina

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In collaboration with our members, we’ve outlined some fundamental principles that underpin judicial review:

1. Maintaining checks and balances

The fundamental purpose of judicial review is to determine whether public authorities are acting in accordance with the laws made by parliament.

It provides protection for individuals against state power, and ensures government, public bodies and regulators can all be held accountable.

Without an effective system of judicial review, other fundamental constitutional principles, such as parliamentary sovereignty, will be weakened.

Its essential contribution to upholding the rule of law and principles of democracy within the broader constitutional system must not be diminished.

Guaranteeing that it stays an effective and accessible mechanism for ensuring the accountability of government, public bodies and regulators (according to the laws made by parliament) must be a cornerstone of any possible reform.

2. Judicial independence

Judicial review brings law and politics into close contact. A mature democracy must be prepared to deal with these tensions.

Judges must be free to exercise their duties in judicial review:

without fear or favour
away from political considerations and criticism
without being assumed to have an agenda beyond their role in upholding the law

This allows them to fulfil their constitutional role, and effectively enforce the rights of individuals and organisations.

3. Eligibility

Judicial review focuses on the decision-making of:

government
public bodies
regulators

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 who are affected by the decisions of these bodies.

This includes citizens and non-citizens, when relevant, such as immigration cases or when a company has business interests in the UK.

Organisations 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 judicial review claims.

4. Accessibility and affordability

There should not be excessive procedural hurdles which act as a barrier to bringing a claim.

The need for prompt resolution and sufficient opportunity to pursue a claim must be appropriately balanced.

To be fully accessible, bringing a judicial review claim must also be affordable.

Where individuals lack their own financial means, adequate levels of legal aid must be provided to ensure equal access to the courts to enforce their rights.

Costs awards and court fees must not be so punitive or unduly burdensome that they prevent claims being brought.

5. Scope

As judicial review looks at decisions made by public bodies, it often touches on decisions which may be political or seen as political.

As the remit of the state has expanded, so too has the breadth of decisions subject to judicial review.

It is not the role of courts to second-guess political decisions, and judicial review should not encroach upon the legitimate use of state power. Judges are sensitive to this and they can, and routinely do, make decisions about what is outside the scope of judicial review.

However, there should be no artificial or inconsistent restrictions upon the type of decisions that can be reviewed.

Where there are legal questions, the court should rightly be able to decide that these and certain issues, or categories of issues, should not be precluded from judicial review.

Given the imbalance of power between individuals and the state, it’s important that people have a meaningful ability to challenge decisions which affect their lives and legal rights, to ensure these have been made lawfully.

For judicial review to operate effectively as a remedy of last resort, there must be adequate alternative mechanisms in place for people to assert their rights.

6. Effective remedies

The circumstances of judicial review cases are wide-ranging. No two cases are the same, so what will be a fair outcome in one will not necessarily be so in another.

Judges must have a range of remedies at their disposal, and the discretion to award these, to ensure that justice is meaningfully done.

1. The Judiciary

The Judiciary includes judges and the courts. The role of the Judiciary is to interpret the law and to judge whether the law applies in individual cases. When sworn into office, judges make the following oath:

to do right to all manner of people according to law, without fear or favour, affection or ill will

Firstly, the Judiciary administers justices to all manner of people and ensures everyone is treated equally under the law, regardless of their status or rank. They administer justice fairly and openly. The Courts are impartial. They make decisions according to the law, rather than external political pressures, personal, moral, or political views. As outlined by former Australian High Court Justice Heydon the Judiciary is:

an independent arbiter not affected by self-interest or partisan duty, applying a set of principles, rules and procedures having objective existence and operating in paramountcy to any other organ of state and to any other source of power, and possessing a measure of independence from the wrath of disgruntled governments or other groups

The Courts are independent from the Executive and Legislature. The Judiciary has the power to strike down laws made by the Legislature and declare actions of the Executive unlawful. Judicial review ensures the other arms of Government are accountable under the law and are restrained from enacting laws that may be unconstitutional (and therefore invalid and unenforceable) and behaving unlawfully. This is a highly important check on the power of the Government because it provides a legal process in the courts for any individual, not matter their status or rank, to challenge the decisions of the Government.

The Australian Constitution provides a check on the power of the Executive and protects the independence of the Judiciary from political interference by outlining the tenure and remuneration of the Judiciary. This ensures a judge cannot be sacked (or pay reduced) if they make a decision that Government or those in power dislikes.

To ensure the judiciary does not exceed it powers, there is a process of appeal to higher courts. The High Court of Australia has the power to overrule the decisions of all lower Courts.

The Legislature can override a courts interpretation of any ordinary law by passing or amending the law. This is an important check on the powers of the Judiciary by ensuring the power to make laws is held by elected representatives in Parliament (the Legislature).

2. The Executive

The Executive includes ministers and the government departments, agencies, and statutory bodies they are responsible for. The role of the Executive is to propose (but not pass laws) and then implement laws passed by the Legislature into operation. It has the power to oversee Government Agencies and Departments and deal with social, economic, or environmental issues as they arise.

As the Executive has power to carry out and enforce the law it has the greatest potential of all arms of government for corruption and for exceeding their power. Checks therefore must ensure the Executive acts in accordance with the law and is responsible to Parliament for their actions.

The Judiciary is a critical check on the overuse and misuse of power by the Executive. The Executive is the singly most frequent party in Court proceedings and the Judiciary has the power to determine whether the actions of the Executive are lawful.

Another important check on the power of the Executive is scrutiny by the Legislature and Parliamentary Committees who have the ability to ask the Executive questions in Parliament and to disallow laws passed by the Executive. The Executive is also held accountable by the Shadow Cabinet and the ‘Opposition’ who are frequently critical of Government policy and legislation.

It is important to note that there is only partial separation of powers between the Executive and Legislature in Australia as members of the Executive are drawn from Parliament.

3. The Legislature

The Legislature is an assembly of elected representatives, known as the Parliament, who has the legislative power to make laws. According to Tom Bingham, the Legislature, under the Constitution, may enact any legislation it chooses:

the Parliament has no legislative superior. The courts have no inherent powers to invalidate, strike down, superseded or disregard the provision of an ambiguous statute duly enacted by Parliament and indeed, an extremely limited power to enquire whether a statute has been duly enacted…

A further check on the Legislature is the parliamentary rules and procedures for the passing of laws. For example public readings of the bills and making bills publicly available on the Parliament website enable scrutiny by the public and the media. The bi-cameral system of Government – one which has an Upper and Lower House of Parliament – is a significant check on the power of the Legislature. The important debate and scrutiny of bills within the ‘party room’ slows down over-hasty legislation and enables members of the Legislature to express the views and concerns of those who they represent. It is an important internal check on the power of the Legislature. The Upper House has been described as:

the most important of the constitutional checks on balances on excessive concentration of power…It is the one place where Government can, of right, be questioned and obliged to answer.

– NSW Legislative Practice Chapter 2

Another important check on the power of the Legislature is the ability of the Governor General to dissolve the Legislature, which is only done in exceptional circumstances. The Governor General also must give royal assent to laws passed by the Legislature.

Further, the Constitution balances the law-making power between Federal and State Governments. The Federal Government has the power to legislate with regard to issues such as defence, taxation and immigration, whilst State Governments can make laws in areas such as roads, hospitals, and schools.

Rule of law principles also guide law making. Laws should not be retrospective. This means that once a court decision is handed down, the Legislature cannot then reverse this decision by introducing laws that illegalise actions that were deemed legal at the time by the courts The laws must consider how they delegate power, and must not include arbitrary, overly discretionary or retrospective provisions, be clear, able to be complied with and relatively stable.

Whilst the judiciary is a check to ensure all legislation is lawful, the Legislature also acts as a check on the Judiciary because it can pass laws that override the decisions of the courts.