The Bill is the first legislative step in the Government’s plan to introduce restrictions on the use of Judicial Review
On 21 July 2021, the Government introduced the Judicial Review and Courts Bill (“the Bill”) to Parliament. The Bill is intended to bring into law some, but not all, of the measures consulted on by the Government earlier this year in the Judicial Review Reform consultation (“the Consultation”). The Bill is the first legislative step in the Government’s plan to introduce restrictions on the use of Judicial Review. The Lord Chancellor said that the Bill was delivering on the Government’s pledge “to ensure that the courts are not open to abuse and delay”. Whilst this may be the start of a process in that direction, to date, the changes are limited and much less incursive into the rights of access to the court and effective challenge of state action, than feared.
The two reforms relating to Judicial Review that are proposed by the Bill are:
- Judges are to be given the power in Judicial Review claims to modify quashing orders by (i) suspending the effects of a quashing order until a specified date (i.e. delaying the point at which an action found to be unlawful will be overturned so that it remains lawful until a certain date) and/or (ii) limiting or removing the retrospective effect of quashing orders (i.e. so that certain actions already taken under, for instance, regulations subsequently found to be unlawful are not overturned). At the moment, quashing orders take effect immediately.
- The so-called ‘Cart judgment’ is to be reversed by introducing a new type of “ouster clause” meaning that appeals in the Upper Tribunal cannot be subject to judicial review. The majority of these appeals arise out of immigration and asylum appeals.
With respect to the new powers in relation to quashing orders, the Bill sets out a list of mandatory considerations that the Court must have regard to in deciding whether to exercise them. Broadly the Court must consider (i) the nature and circumstances of defect (including any relevant steps that have been or are proposed to be taken, or any undertaking given, in connection with the impugned act), (ii) any detriments on good administration as a result of exercising, or failing to exercise, the power and (iii) the interests or expectations of those that may be affected by quashing the impugned act either by benefiting from quashing or having relied on the impugned act. Quashing orders made under these powers can also be made subject to conditions (e.g. the Court may suspend quashing on condition that no further action is taken to enforce a decision until it is quashed). Further, whilst these powers have been described by the Government as discretionary, that discretion is fettered to a certain extent. The Bill requires the Court, unless there are good reasons not to, to exercise these powers if doing so would, in substance, give adequate redress having particular regard to any relevant action taken or proposed to be taken, or any undertaking given, in connection with the impugned act.
There has been some concern raised that the power to limit or remove the retrospective effect of quashing orders could have unintended consequences. For instance, it could deter potential claimants from bringing otherwise meritorious claims if there is a risk they will not get an effective remedy if they succeed. Whether concerns such as these are valid will, however, depend on the ultimate wording of any legislation that is made and the way in which the provisions are interpreted and applied by the Courts.
In relation to “Cart” judicial reviews, the Bill provides a new “ouster clause” (i.e. a legislative provision removing the Court’s jurisdiction) so that any decision by the Upper Tribunal to refuse permission to appeal is final and cannot be questioned or set aside in any other court. This clause, as currently drafted, applies even if it could be argued that the Upper Tribunal has exceeded its powers by reason of any error made in its decision (e.g. if the law is clarified by a higher court shortly after the decision is taken and the Upper Tribunal’s decision is contrary to that decision). It also excludes the High Court’s supervisory jurisdiction of judicial review over such decisions. The Bill does not, however, oust all potential challenges. It leaves open the possibility of these Upper Tribunal decisions being challenged on certain grounds including (i) the Upper Tribunal did not have jurisdiction to make the decision, (ii) the Upper Tribunal was not properly constituted to deal with the application, or (iii) the Upper Tribunal acted in bad faith or in breach of natural justice in taking the decision.
The Bill does not legislate on some other measures considered in the Consultation. Most notably, the Bill does not include provisions on the proposals to enforce the use of “ouster clauses”, which remove the Court’s jurisdiction to hear a judicial review claim in prescribed circumstances. Instead, the Government has stated that it will use the “Cart” provisions as a precedent to be replicated in future legislation. It will therefore be important to scrutinise how these “Cart” provisions progress through Parliament as they could have far reaching implications for the use ouster clauses, and the Court’s supervisory jurisdiction over Government actions, in the future.
The Bill also does not address the issue of nullity as anticipated in the Consultation. Rather, the Bill provides that where the new powers in relation to quashing orders are exercised, the impugned act is upheld so that its validity and force were and always had been unimpaired by the unlawfulness found by the Court.
The Bill is the first legislative act of the Government’s wider Commission on the Constitution Rights and Democracy, which also includes the ongoing Independent Review of the Human Rights Act, and the Royal Commission on the Criminal Justice System, which is due to be launched this summer