Rebecca Williams: No Pyrrhic victories. The ‘Makes a Difference’ Rule and the Nature of Judicial Review

“The government’s supposed justification for these provisions was the ‘undue pressure’ put on ‘the courts and other essential public services’, which can ‘unduly frustrate decisions that were properly made’. But of course what the provisions do is to try to deny a remedy in cases where the decision was not ‘properly made’ at all, but where the impact on a particular individual may be relatively small. As Paul Craig has pointed out, ‘While the ‘burden of judicial review’ was the avowed purpose of the exercise, Banquo’s ghost hovering in the background was the government’s irritation with the impediments that review could place on pursuit of its desired policy,’ particularly given that the clause was accompanied in the statute by provisions which increase the financial risk of bringing judicial review actions by reducing the ability to cap litigation costs and requiring claimants to demonstrate their ability to bear this risk when bringing the action, while simultaneously reducing the availability of legal aid for the bringing of judicial review claims.”

Administrative Law in the Common Law World

‘The principles of judicial review’, as Lord Hoffmann noted in Alconbury, ‘give effect to the rule of law. They ensure that administrative decisions will be taken rationally, in accordance with a fair procedure and within the powers conferred by Parliament’. It is therefore a matter of particular concern that in England and Wales s 84 of the Criminal Justice and Courts Act 2015 has now inserted s 31(2A) and (3D) into the Senior Courts Act 1982, provisions which have the potential substantially to inhibit courts’ power to maintain the rule of law in this way. S 84 provides that:

(2A) The High Court—

(a) must refuse to grant relief on an application for judicial review, and

(b) may not make an award under subsection (4) on such an application,

if it appears to the court to be highly likely that the outcome for the applicant would not have been…

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