Accountability and Judicial Review in the UK and the EU: Central Precepts

Abstract

Judicial review is one method of securing accountability in the modern state. It is not the only one, but then accountability is not in this respect a zero sum game. This is so notwithstanding the fact that commentators might legitimately disagree on the ambit of judicial review, or on its relative importance as a mechanism to secure accountability when compared to other methods. The very fact that all developed legal systems have some regime of judicial review is indicative of its perceived importance in securing the values of the liberal state, using that phrase in broad terms for these purposes. This does not mean complacency in this regard. To the contrary, discussion of accountability entails not merely estimation of the relative efficacy of different mechanisms to secure this end, but also evaluation of the credentials underlying any particular accountability mechanism itself, the latter being the objective of this chapter.

This chapter is concerned with judicial review as developed in the UK and in the EU. It does not directly address the impact of the latter on the former. There is literature dealing with the effect of EU law on judicial review, more especially the way in which EU general principles of law have affected domestic judicial review. This chapter does not replicate this discourse. The focus is rather on the cardinal features that define and shape judicial review in a legal system in order to see how the UK and the EU compare in this regard. To this end the subsequent analysis considers the two systems in terms of conceptual foundations, legitimacy, hierarchy of norms and rights. This exercise has not to my knowledge been undertaken in relation to UK and EU models of review. It sheds interesting light on domestic debates in the UK and on the foundations of judicial review in the EU. The discussion will be addressed principally in relation to judicial review of executive action rather than primary legislation, although there will also be consideration of the latter, more especially because the divide between the two has not in the past been either clear or central to the application of judicial review in the EU. For the sake of clarity it should be noted at the outset that the EU principles of judicial review bind not only the EU institutions, but also the Member States when they act in the scope of EU law.

Keywords: judicial review, legitimacy, hierarchy of norms, rights, accountability