Question to the Ministry of Justice:

To ask the Secretary of State for Justice, pursuant to the contribution of the Secretary of State for Justice on 1 December 2014, Official Report, column 72, what the evidential basis was for his statement that minor technicalities in process have been used as an excuse to bring judicial review.

The Government accepts that failures of procedure can amount to substantive unlawfulness, and that judicial review is a crucial mechanism by which such unlawfulness is considered and remedied by the court.

However, we are concerned by the continuing potential for a judicial review to be brought on minor technical points which could not have, or which were highly unlikely to have, substantially affected the outcome for the applicant.

The potential for this type of challenge has been recognised by the courts, which have developed an approach in case law under which, if the outcome would inevitably have been the same even if the alleged defect had not occurred, the court can refuse the remedy sought – see, for example, R v The Chief Constable of the Thames Valley Police, ex parte Cotton [1990] IRLR 344.

However, in the Government’s view the ‘inevitable’ threshold is too high to deal effectively with claims brought on minor technical points. Consequently, in clause 64 of the Criminal Justice and Courts Bill (as introduced into the House of Lords), the Government is legislating to provide for a ‘highly likely’ threshold.