Judicial review is a process by which a state's administrative, executive and, in certain jurisdictions, legislative actions are subject to review by the judiciary. In a judicial review, a court supervises and assesses the legality of governmental action, administrative decision-making and certain types of legislation. The range of acts which might be subject to judicial review, as well as the reasons for which they might be held unlawful, varies significantly between different jurisdictions. In most jurisdictions, however, courts in judicial review assess the compatibility of lower-range laws with superior forms of law. For example, an executive decision may be invalidated for being incompatible with primary legislation, or a statute may be invalidated for violating the terms of a constitution.
In Enlightenment-based traditions of constitutionalism, judicial review is conceived of as one of the checks and balances central to the notion of separation of powers: it is the role of the judiciary to ensure that the executive and legislative branches of government exercise their powers within the limits set by the law. The doctrine varies between jurisdictions, so the procedure and scope of judicial review may differ between and within countries.
Background History in the Common Law Tradition In the Anglophone legal tradition, the idea that all exercise of executive power should be subject to effective review by independent courts dates back to at least the renaissance, or the reign of Elizabeth I and James I. The principle is traditionally attributed to chapter 29 of Magna Carta, although the practical means of enforcing it were not developed until the sixteenth and seventeenth centuries. It was then that it became well-established, particularly under the influence of Sir Edward Coke, a prominent jurist of the Elizabethan and Jacobean eras, that any exercise of legal discretion (of power granted by law) other than that falling within one of the 'absolute' royal prerogative (e.g. summoning parliaments, making treaties and declaring war) must be lawful and capable of being supervised by courts, particularly for compliance with the Magna Carta (some fundamental judgments establishing these principles include the Case of Proclamations and Dr. Bonham's Case).
The idea that an independent judiciary should have an inherent jurisdiction to review the exercise of power by the executive and legislative branches of government later became central to Enlightenment political thought, particularly in the context of separation of powers. The conception of a government based on the separation of executive, legislative, and judicial powers was popularised by Montesquieu.Montesquieu, Baron Charles de, The Spirit of the Laws In Book IX, Chapter 6 of The Spirit of the Laws, inspired by his reflections on the British constitutional system, he introduced, for the first time in modern political theory, the idea that judicial power must be exercised by a distinct and independent branch of the state. This tradition of thinking informed the drafting of the U.S. constitution, particularly as regards the necessity of an independent body having a power to review laws for compatibility with the constitution. Although the U.S. constitution, as ultimately drafted, did not codify the power of federal courts to conduct judicial review, that step was taken by the Supreme Court in the seminal Marbury v. Madison decision, deciding that the Court had the power to enforce the separation of powers stated in the US Constitution and to review legislation to that end. This was left uncontested by the U.S. Congress and president Thomas Jefferson, although Jefferson later expressed doubts as to whether the constitution gave exclusive power to (unelected) courts (as opposed to the executive or legislative branches) to conduct judicial review of legislation.
Fundamental Ideas Separation of powers is based on the idea that no branch of government should be able to exert power over any other branch without due process of law; each branch of government should have a check on the powers of the other branches of government, thus creating a regulative balance among all branches of government. The key to this idea is checks and balances. In the United States, judicial review is considered a key check on the powers of the other two branches of government by the judiciary. The judiciary in United States has been described as having unusually strong powers of judicial review from a comparative perspective.
Although the term judicial review may describe the power of the courts to review either legislation or executive acts, or both, some countries with common-law systems do not have judicial review of primary legislation. In the United Kingdom in particular, judges do not have the power to strike down primary legislation, due to a strong attachment to the idea of legislative supremacy. However, when the United Kingdom became a member of the European Union, it eventually became accepted that courts have the power to disapply national law held to be incompatible with EU law or the rulings of the EU Court of Justice. With the passing of the Human Rights Act 1998, which incorporated the European Convention of Human Rights (ECHR) into the British legal order, courts have been granted the power to issue declarations of incompatibility when they find legislation to be inconsistent with the ECHR. Such declarations, when issued, do not have the result of disapplying inconsistent legislation, but rather function as a request to Parliament to remedy the breach through the legislative process.
Principles of review
When carrying out judicial review of administrative or executive action, one of the fundamental principles of review is described as ultra vires review: the court determines whether the public body actions are within (intra) or outside (ultra) of the powers given to them by legislation (the power's 'vires').
The review of administrative acts by public bodies in judicial review has to be distinguished from a legal appeal. In judicial review, a court is usually not re-taking the decision for itself: rather, it reviews whether the original, challenged decision, has been made in compliance with the relevant law and certain administrative law doctrines, such as procedural fairness or legitimate expectations.
Types
Review of administrative acts and secondary legislation
Most modern legal systems allow the courts to review administrative actions (individual decisions of a public body, such as a decision to grant a subsidy or to withdraw a residence permit). In most systems, this also includes review of secondary legislation (legally enforceable rules of general applicability adopted by administrative bodies). Some countries (notably France and Germany) have implemented a system of administrative courts which are charged with resolving disputes between members of the public and the administration, whether these courts are part of the administration (France) or judiciary (Germany). In other countries (including the United States and United Kingdom), judicial review is carried out by regular civil courts although it may be delegated to specialized panels within these courts (such as the Administrative Court within the High Court of England and Wales). The United States employs a mixed system in which some administrative decisions are reviewed by the United States district courts (which are the general trial courts), some are reviewed directly by the United States courts of appeals and others are reviewed by specialized tribunals such as the United States Court of Appeals for Veterans Claims (which, despite its name, is not technically part of the federal judicial branch). It is quite common that before a request for judicial review of an administrative action is filed with a court, certain preliminary conditions (such as a complaint to the authority itself) must be fulfilled. In most countries, the courts apply special procedures in administrative cases.
Review of primary legislation
There are three broad approaches to judicial review of the constitutionality of primary legislation—that is, laws passed directly by an elected legislature.
No review by any courts
Some countries do not permit a review of the validity of primary legislation. In the United Kingdom, Acts of Parliament cannot be set aside under the doctrine of parliamentary sovereignty, whereas Orders in Council, another type of primary legislation not passed by Parliament, can (see Council of Civil Service Unions v Minister for the Civil Service (1985) and Miller/Cherry (2019)). Another example is the Netherlands, where the constitution expressly forbids the courts to rule on the question of constitutionality of primary legislation passed by the Dutch legislature or States-General.Article 120 of the Netherlands Constitution
Review by general courts
In countries which have inherited the English common law system of courts of general jurisdiction, judicial review is generally done by those courts, rather than specialised courts. Australia, Canada and the United States are all examples of this approach.
In the United States, federal and state courts (at all levels, both appellate and trial) are able to review and declare the "constitutionality", or agreement with the Constitution (or lack thereof) of legislation by a process of judicial interpretation that is relevant to any case properly within their jurisdiction. In American legal language, "judicial review" refers primarily to the adjudication of the constitutionality of statutes, especially by the Supreme Court of the United States. Courts in the United States may also invoke judicial review in order to ensure that a statute is not depriving individuals of their constitutional rights.Eskridge et al., supra note 532, at 1207 ("Presumption in favor of judicial review."); id.("Rule against interpreting statutes to deny a right to jury trial."); id.("Super-strong rule against implied congressional abrogation or repeal of habeas corpus."); id. at 1208 ("Presumption against exhaustion of remedies requirement for lawsuit to enforce constitutional rights."); id.("Presumption that judgements will not be binding upon persons not party to adjudication."); id.("Presumption against foreclosure of private enforcement of important federal rights."). See, e.g., Demote v. Hyung Joon Kim, 538 U.S. 510, 517 (2003). But see Scalia & Garner, supra note 532, at 367 (describing as a "false notion" the idea "that a statute cannot oust courts of jurisdiction unless it does so expressly"). This is commonly held to have been established in the case of Marbury v. Madison, which was argued before the Supreme Court in 1803.
Judicial review in Canada and Australia pre-dates their establishment as countries, in 1867 and 1901, respectively. The British Colonial Laws Validity Act 1865 provided that a British colony could not enact laws which altered provisions of British laws which applied directly to the colony. Since the constitutions of Canada and Australia were enacted by the British Parliament, laws passed by governments in Australia and Canada had to be consistent with those constitutional provisions. More recently, the principle of judicial review flows from supremacy clauses in their constitutions.Australian Communist Party v Commonwealth (1951) 83 CLR 1 AustLII In Australia, the term 'judicial review' generally refers to reviews of the lawfulness of the actions of the executive and the public service, while reviews of the compatibility of laws with the Australian Constitution is known as characterisation or constitutional challenges.