Response to Ministry of Justice Consultation Paper CM 8703 -- Judicial Review: Proposals for Further Reform

Abstract

The UK Ministry of Justice published a consultation paper in September 2013 proposing significant changes to arrangements for judicial review of government action. In this paper, the Bingham Centre for the Rule of Law responds to the consultation. It addresses three key issues raised by the consultation. First, the paper argues that proposals to narrow the test for standing are problematic and misconceive the constitutional purpose of judicial review. Second, the paper criticises the proposal to limit judicial review of procedural defects that "made no difference" to the outcome, arguing that such defects are practically hard to identify and that, in any event, procedural fairness is valuable in itself, not just instrumentally. Third, the paper argues that proposals to "rebalance financial burdens" would risk creating a justice gap by pricing some prospective litigants out of judicial review.