The Bingham Centre for the Rule of Law has submitted a response to the Ministry of Justice’s latest proposals (a summary of which I posted here) concerning judicial review. Those proposals are the sequel to an earlier consultation, published in late 2012, to which the Bingham Centre also responded. In its response (of which I am a co-author) to the most recent proposals, the Bingham Centre addresses three key issues raised by the consultation.
First, we argue that the proposal to narrow the test for standing, so as to reduce or eliminate the scope for public-interest challenges by unaffected claimants, is misconceived. In particular, we argue in the paper that the supposition underlying the proposal – that judicial review’s sole or principal purpose is to protect individuals’ rights and interests – fundamentally misunderstands the constitutional role of judicial review. We point out that:
The legal standards upheld via judicial review ultimately constitute not only rights enjoyed by individuals, but duties owed by government to the public. It does not necessarily follow that the law should recognise an actio popularis, such that anyone can institute judicial review proceedings against the government irrespective of whether they have any connection with the subject-matter of the claim. The fact that a direct interest should sometimes be required does not mean that it should always be required.
Second, we examine the proposal to reduce the scope for the bringing of cases in which procedural defects undermine the lawfulness of decisions, but where those decisions would have been the same even if the procedural defect had not been present. This proposal is highly problematic for several reasons. It assumes that procedural defects that “make no difference” can be readily identified – yet, as Megarry VC famously pointed out in John v Rees  Ch 345:
As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for a moment likely to underestimate the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events.
Alongside this practical objection to the proposal is one of principle. It undervalues procedural protections by presupposing that their role is merely to enhance the quality of the outputs of the decision-making process. Yet due process is valuable in itself, as we point out in our paper:
Courts are rightly reluctant to accept a submission that adopting a proper procedure would have made no difference to the ultimate decision, because such an approach undermines important procedural protections built in to the common law or statute and undervalues the importance of participation in decision-making by those affected by decisions or by the public at large. That participation is rightly recognised to be an important part of our democracy.
Third, we consider the government’s proposals for “rebalancing financial incentives”. We are concerned that the combined effect of those proposals would, if implemented, be to increase the financial burdens and risks placed upon claimants. As well as pricing many unfunded individuals out of judicial review, the allocation of risk to prospective claimants would likely exert a chilling effect that would discourage cases from being brought in the first place. We say that the consultation paper
fails to appreciate the main problem in the current arrangements. This is not that costs do not currently disincentivise claims sufficiently: it is that they are far too much of a disincentive. For most prospective claimants, cost issues are so potentially significant yet unpredictable that they the run very substantial risks by embarking upon judicial review. Protective Costs Orders provide about the only way of managing these risks for the majority of people, but their scope remains partial and they are very rarely granted.