Crossing the t's and dotting the i's: The turn to procedural rigour in judicial review

Abstract

In public law, the senior judiciary go through periods of procedural tightening and loosening. Periods of tightening include the 1980s when the House of Lords developed the notion of “procedural exclusivity” in O’Reilly v Mackman [1983] 2 AC 237, which required public law challenges ordinarily to be pursued via judicial review proceedings. Periods of loosening include the 1990s when the approach to standing was increasingly liberalized, exemplified by R. v Secretary of State for Foreign and Commonwealth Affairs ex p. World Development Movement Ltd [1994] EWHC Admin 1.

Procedural developments are closely associated with broader changes, debates or dilemmas in the legal, administrative and political environment. Procedure becomes a way of regulating access to the courts in light of that wider environment and mood. Analysis of procedural developments thus requires understanding of the underlying concerns, inarticulate premises of, and structural pressures operating on judges.

We are at the height of another period of procedural tightening, which I call the turn to procedural rigour. Ongoing since 2018, it involves an attitudinal and rhetorical shift in the senior judiciary away from procedural flexibility towards procedural formalism, manifesting as a public focus on the importance of parties adhering to existing procedural requirements and the creation of new procedural rules. By “procedural”, I mean things related to the process by which cases are brought, argued and decided, separate from substantive doctrine and grounds of challenge.

I suggest that this period of tightening is driven by three things: a judicial belief that for a number of years practitioners had become too casual with respect to procedure in a way that undermined efficient case management; the judicial desire to prevent courts from straying into matters which are perceived as political or which involve specialist knowledge unsuited to courts; and the need to be seen to reform judicial review in response to debates about the extent of its intervention into politics.

I have two reasons for outlining this trend. First, while procedural formalities serve important functions, the risk is that otherwise strong claims for judicial review dealing with significant illegality, with implications for many individuals beyond the claimant, could be dismissed for procedural breaches unrelated to the claim’s legitimacy and which cause negligible, if any, disadvantage to defendants. Secondly, while current public law scholarly focus is on doctrinal developments in the Supreme Court, this analysis is a prompt to turn some attention towards procedure and lower courts. We should not sleepwalk through the latest preference for formalism over pragmatism.

Keywords: Judicial Review; Procedure; Civil Procedure Rules; Administrative Law; Judiciary