Judicial Review: Should Courts Have the Power to Overturn Laws?

Introduction

Judicial review represents the epitome of the rule of law, a mechanism that enables “individuals to challenge the actions of public authorities when they have misunderstood, exceeded, or abused their legal powers, or violated rights protected by the common law”. It empowers courts to examine laws, regulations, and governmental actions in order to establish whether they comply with a constitution or fundamental legal principles. The doctrine of judicial review is fundamental to the principle of checks and balances, preventing any branch of the government from exceeding their lawful authority. This article aims to discuss the concepts of judicial review in the UK, USA, EU, and introduce the readers to critical cases. 

Judicial Review in United Kingdom

The courts in the United Kingdom have less power to review primary legislation than those in other countries as a result of the deeply entrenched parliamentary sovereignty principle. Consequently, judicial review in the UK mainly examines the legality of actions taken by government ministers, local authorities, and other public bodies, as well as decisions made by lower courts and tribunals. It can also be used to challenge delegated legislation and laws passed by devolved legislatures.

The Human Rights Act 1998, section 4, allows UK courts to issue a declaration of incompatibility if legislation conflicts with the European Convention on Human Rights (ECHR), prompting Parliament to consider amendments. 

An important case for the UK jurisdiction is R (Miller) v The Prime Minister (2019), where the UK Supreme Court ruled that the government’s decision to prorogue Parliament was unlawful, reinforcing judicial oversight of executive power.

Judicial Review in the United States

The US has a strong, robust system of judicial review, established by the case of Marbury v Madison (1803), where the Supreme Court first enshrined its power to strike down unconstitutional laws. The doctrine empowers the courts to invalidate federal and state laws that conflict with the US Constitution, shaping the political and legislative grounds. Significant decisions such as Brown v Board of Education (1954) struck down racial segregation, while Roe v Wade (1973) recognized a constitutional right to abortion—a precedent later overturned by Dobbs v Jackson Women’s Health Organization (2022).

Judicial Review in the EU

In the EU, judicial review is conducted by the Court of Justice of the European Union (CJEU), which ensures that EU laws comply with treaties and fundamental rights. National courts also play a role, referring cases to the CJEU for preliminary rulings. A key case is Costa v. ENEL (1964), which established the supremacy of EU law over national legislation. The CJEU also ruled in Kadi v. Council (2008) that EU regulations must comply with fundamental rights, emphasizing judicial oversight at the supranational level.

The Role of Judges in Judicial Review

Judges reviewing legislation and executive actions must balance legal interpretation with democratic principles. In systems with strong judicial review, such as the US, judges often engage in constitutional interpretation, sometimes leading to judicial activism or restraint. In contrast, UK judges traditionally exercise judicial review with deference to Parliament, focusing on procedural fairness and rights protection rather than directly striking down laws. On the international stage, judges in courts like the European Court of Human Rights and the International Court of Justice handle complex cases that shape global justice. In Kadi v. Council of the EU (2008), for example, judges upheld individual rights while reinforcing the importance of fair legal processes in international law.

Leading Cases and Their Impact

R (Factortame Ltd) v Secretary of State for Transport (1990) – The first case where UK courts suspended an Act of Parliament due to its conflict with EU law, reinforcing judicial oversight.

Council of Civil Service Unions v Minister for the Civil Service (1985) (GCHQ Case) – Defined the three key grounds for judicial review: illegality, irrationality, and procedural impropriety.

United States v. Nixon (1974) – Demonstrated the court’s ability to review executive actions, ruling that presidential privilege could not override judicial scrutiny.

Massachusetts v. EPA (2007) – Confirmed that federal agencies must comply with judicial review and that the EPA could be forced to regulate greenhouse gases.

Digital Rights Ireland v. Minister for Communications (2014) – A judicial review case striking down the EU Data Retention Directive for violating privacy rights.

Conclusions

Judicial review is a fundamental mechanism for upholding the rule of law, but its legitimacy hinges on its careful and responsible application. While courts must respect the will of democratically elected bodies, they also play a vital role in safeguarding constitutional principles and protecting individuals from unjust or unconstitutional laws. The true challenge lies in maintaining a delicate balance between judicial authority and legislative supremacy, ensuring that judicial review acts as a safeguard for justice without undermining the democratic process. When exercised properly, it strengthens the rule of law and promotes accountability within government.

References and Further Reading

"Public Law: Texts, Cases and Materials" (Oxford University Press)

"Public Law Directions" (Oxford University Press)

"The Nature of Power as Public in English Judicial Review" (Cambridge Law Journal)

"The Outer Limits of English Judicial Review" (Public Law)