Should discretion be eliminated where unlawfulness is proven?
Jowell and Lester famously argued ('Beyond Wednesbury' [1987] PL 368 and related writings) that wide remedial discretion undermines the rule of law. If a decision is unlawful, relief should automatically follow; otherwise, courts risk subordinating legality to administrative convenience, defeating the purpose of judicial review.
This view has attracted judicial sympathy. In R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, Lord Carnwath warned against remedial discretion becoming a 'backdoor ouster clause', effectively negating substantive rights.
Craig (Administrative Law, 9th edn, 2021) acknowledges the force of this argument but notes pragmatic constraints: quashing a decision may disrupt public administration, harm third parties, or waste resources. Discretion allows courts to tailor relief to context, fostering proportionate and workable outcomes.
Elliott ('The Discretionary Nature of Remedies in Judicial Review' [2000] CLJ 490) defends structured discretion: provided it is exercised transparently, with reasons, and subject to appeal, it need not conflict with the rule of law. He distinguishes between arbitrary discretion (inconsistent with legality) and principled discretion (guided by legal criteria and proportionality).
The 'inevitability' or 'no substantial difference' test
The codification of inevitability in s. 31(2A) has intensified debate. Wade and Forsyth (Administrative Law, 11th edn, 2014) criticise the test as conflating procedural fairness with substantive correctness. Fair process has intrinsic value, independent of outcome; denying relief because the 'right' result was reached anyway devalues this principle.
Fordham (Judicial Review Handbook, 7th edn, 2020) observes that s. 31(2A) requires 'highly likely', not certainty, offering some protection. Yet predicting counterfactual outcomes involves speculation and may encourage decision-makers to cut procedural corners, confident that courts will overlook flaws if the outcome appears correct.
The Court of Appeal in Goring-on-Thames imposed discipline on s. 31(2A), requiring clear evidence and placing the burden on defendants. Nonetheless, academic concern persists that the provision erodes procedural rights.
Interim relief and the separation of powers
The expansion of interim relief—especially Factortame (No 2)—has sparked debate about judicial overreach. Griffith and others in the political constitution tradition argue that interim injunctions against the Crown upset constitutional balance, allowing unelected judges to frustrate executive action pending full hearings.
Laws ('Law and Democracy' [1995] PL 72) counters that interim relief is essential to protect rights: without it, unlawful executive action could cause irreparable harm before judicial review concludes. The availability of interim relief vindicates the common law constitution and ensures access to effective remedies.
Post-Factortame, concerns have receded, and interim relief is now routine. The debate has shifted to the standard of review applied at the interim stage and the weight given to the public interest.
Comparative lessons
Craig and Bamforth note that other common law jurisdictions—Canada, Australia, New Zealand—have grappled with similar issues. Canada's approach in Dunsmuir v New Brunswick [2008] 1 SCR 190 and subsequent cases emphasises effective remedies aligned with Charter values. Australian law permits compensation orders in administrative law proceedings under the Administrative Decisions (Judicial Review) Act 1977 (Cth), contrasting with England's bifurcated approach.
Comparative study reveals no consensus, but a trend towards rights-oriented remedies and reduced tolerance for purely formalistic refusals of relief.