Public interest judicial review in cross-border perspective

Abstract

This paper assesses challenges in England and in Scotland to the ‘public interest conception’ of judicial review according to which judicial review is intended primarily to promote the public, rather than private, interest. It shows that though recent decades have seen the public interest conception of judicial review in the ascendancy south of the border, there has been in the recent past a changing of the tide: the public interest conception of judicial review has been chipped away by legislative developments which reject the premise upon which it is based – largely by implementing procedural rules which are in significant tension with it. In Scotland, on the other hand, the courts have shown less enthusiasm for that conception, with many of the procedural rules and developments which reflect it having been resisted by the Scottish judiciary or acceded to only belatedly and with some reluctance. On the basis of a consideration of the issues of standing, protective costs orders and third party interventions, it shows that, though the conception of judicial review which sees it primarily as a tool by which the public interest can be pursued and protected is in poor health on both sides of the border, the details of, and reasons for that conclusion, differ in interesting ways.

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