Reforming Judicial Review: Procedural Reform and the Avoidance of Substantive Review?

Abstract

Recent English reforms to restrict the availability of access to a reviewing court through changes to the judicial review procedure create rule of law concerns. This paper examines those reforms in light of comparative studies of the existing law and recent reforms in Australia, Canada, and England and Wales. The study demonstrates the relative strictness of time limits for bringing an application for judicial review as opposed to litigation in other subject matters, and the particular ‘hardness’ of those limits in England and Wales. The authors also situate the focus on judicial review procedure within the broader trend of proceduralism in civil litigation, and illustrate – via two vignettes from Australia and Canada – how this new proceeduralism create particular vulnerability in the context of judicial review.

Keywords: Judicial review, administrative law, procedural reform, rule of law, legality, Australia, Canada, England and Wales