The difference between judicial review and merits review and the kinds of arguments that may be made in each context
Difference Between Judicial Review and Merits Review
| Aspect | Judicial Review | Merits Review |
|---|---|---|
| What it reviews | The lawfulness of a decision (process, powers, fairness) | The correctness or desirability of the decision itself |
| Scope | Limited to legality: whether the decision was made properly, within power, and fairly | Wide: reconsider all facts, evidence, and policy; may substitute own decision |
| Who conducts it | Courts or tribunals | Administrative tribunals or specialized bodies |
| Typical arguments | Procedural errors, illegality, irrationality, bias, lack of jurisdiction | Disagreement with facts, policy choice, fairness of outcome |
| Outcome | Quashing, remitting decision for reconsideration, or prohibiting action | Confirm, vary, or substitute the original decision |
Detailed Explanation
1. Judicial Review
Focuses on how the decision was made, not whether it was the right decision.
Ensures decision-makers act within their legal powers (ultra vires doctrine).
Protects procedural fairness (natural justice).
Grounds include illegality, irrationality (Wednesbury unreasonableness), procedural impropriety, and legitimate expectation.
2. Merits Review
Reviews whether the decision was the best or preferable one based on the facts and law.
Can reassess evidence, substitute decisions, or apply policy differently.
Usually conducted by administrative tribunals with specialist expertise.
Focuses on fairness and correctness, not just legality.
Case Laws Illustrating Judicial Review and Merits Review
Judicial Review Cases
1. Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223
Context: Judicial review case.
Principle: Introduced the "Wednesbury unreasonableness" test—courts will only intervene if a decision is irrational.
Significance: Shows how courts limit their intervention to the legality of decisions, not substituting their own view.
2. Ridge v Baldwin [1964] AC 40
Context: Judicial review on grounds of procedural fairness.
Principle: Administrative decisions affecting rights require fair hearing; failure to comply leads to invalidity.
Significance: Judicial review protects procedural fairness, not merits.
3. Council of Civil Service Unions v Minister for the Civil Service (GCHQ case) [1985] AC 374
Context: Judicial review of prerogative powers.
Principle: Even prerogative powers are reviewable for legality, irrationality, and procedural fairness.
Significance: Courts scrutinize legality rather than merits.
Merits Review Cases
4. R v Secretary of State for the Home Department, ex parte Tarrant [1985]
Context: Merits review by a tribunal on immigration decisions.
Principle: The tribunal reviewed facts and substituted its own decision regarding deportation.
Significance: Illustrates merits review allowing reassessment of evidence and substituting decisions.
5. Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147
Context: Although primarily judicial review, it also impacted merits review.
Principle: Courts held that errors of law by administrative bodies cannot be excluded from review; blurred lines between strict judicial review and merits review.
Significance: Shows judicial review can address legal errors that affect the merits.
Kinds of Arguments in Each Context
| Review Type | Typical Arguments | Example of Case or Situation |
|---|---|---|
| Judicial Review | - Decision-maker lacked jurisdiction (ultra vires) - Failure to follow fair procedure (bias, no hearing) - Irrational or perverse decision (Wednesbury) - Legitimate expectation breached | Ex parte Ridge (fair hearing) Wednesbury (irrationality) |
| Merits Review | - Incorrect evaluation of facts - Poor policy application or interpretation - Unfair or unreasonable outcome - Alternative conclusions supported by evidence | Immigration tribunals reviewing deportation Social security appeals |
Summary
Judicial review is about lawfulness—protecting the legal boundaries and fair process.
Merits review is about correctness or fairness of the decision—reassessing facts, policies, and outcomes.
Courts mainly perform judicial review; specialized tribunals often do merits review.
Legal challenges in judicial review focus on legality; in merits review, focus on the substance of decisions.
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