Judicial review

The power of judicial review is held by courts in the United States.

In the case of the United Kingdom, such a power conflicts with the principle of parliamentary supremacy. The incorporation under the Human Rights Act 1998 of the European Convention on Human Rights has attempted to strike a balance, by allowing UK courts to issue a "declaration of incompatibility" regarding offending legislation, leaving it to parliament to make any necessary changes.

In Canada, the same principle applied, though since the Constitution of Canada created a federal state there was an issue of the division of powers so there was limited judicial review regarding conflicts that arose because of this division. Only in 1982 when the patriated Canadian Constitution came into force did the Canadian Charter of Rights and Freedoms create a clear written power of judicial review. In that document, the Supreme Court of Canada was granted the power of judicial review which can be overridden by governments with the notwithstanding clause. However, it is a mechanism which is considered increasingly dangerous politically as the public respect for the constitution and its Canadian Charter of Rights and Freedoms increases over time.

In the Courts of England and Wales, Judicial Review is more commonly used to refer to the exercise of the prerogative writs of mandamus, certiorari and prohibition by the Administrative Court. These are ancient writs issued by the courts against (in particular) the executive branch of government where the executive has acted unlawfully. The two most important powers are to force the executive to reconsider a decision, or to prevent an unlawful act from taking place in the future. The grounds for such judicial review include capriciousness, bias, failing to take account of relevant factors and so-called "Wednesbury unreasonableness" - that is a decision so unreasonable that no reasonable person could properly have reached it. The courts will not interfere, however, if the decision, although arguably flawed, was one that was arguably open to the executive to reach.