Collateral challenges in England and Wales: More questions than answers

This chapter examines the ‘plea of illegality’ in the context of England and Wales. Unlike other jurisdictions in this volume, English law does not recognise the plea of illegality or indirect judicial review, as such. Instead, England and Wales recognise the concept of a ‘collateral challenge’, whereby, without first pursuing a judicial review in the High Court, an individual can raise public law grounds as a defence in criminal proceedings or to resist a decision in civil proceedings. The collateral challenge is an exception to the ordinary ‘rule of procedural exclusivity’, that judicial challenges, based on public law grounds, should normally be raised and resolved in the High Court alone. Ultimately, this chapter argues that the collateral challenge is ripe for a renewed wave of research given that it currently suffers from a ‘shadowy half-life’ with minimal scholarly attention. This is due to its rare use in practice and the difficulty of accessing and collecting data on its use. The chapter begins with an overview of the legal framework for judicial review in England and Wales, before explaining how collateral challenges fit into this framework, as well as outlining their limitations. The chapter then goes on to examine the approach of the senior courts to collateral challenges, which has been an attempt to balance multiple competing objectives in differing legal contexts: the desirability of legal certainty for public bodies and third-parties; protecting the right of individuals to resist unlawful decisions at the earliest opportunity; subjecting public bodies to the rule of law; ensuring that court processes are not abused by readily circumventing the ordinary procedural requirements of judicial review; and ensuring that Parliament’s intention, as expressed in a statute, is respected. The chapter concludes with a call to encourage scholars in England and Wales to conduct further research on this important area.