Judicial Review and Courts Bill
The government has introduced the Judicial Review and Courts Bill (“the Bill”) to Parliament. Among other reforms, the Bill, if passed by Parliament, will allow the courts to make new forms of quashing orders in judicial review cases.
Background
Judicial review is the process whereby a Judge in the administrative court reviews the lawfulness of a decision or action made by a public body. Rather than examining the conclusion reached, the Judge will consider whether the way in which the decision was made was lawful.
The Government has stated that, as part of judicial review hearings, Courts’ decisions have reflected Judges’ own political and moral values. Such decisions would have, the Government has said, been more appropriately made by the executive or Parliament.
The Independent Review of Administrative Law (IRAL) was commissioned by the Government in accordance with its election manifesto’s promise to examine judicial review. The IRAL produced a report which was published along with a consultation undertaken by the Ministry of Justice in March 2021. These respectively set out recommendations and proposals for reforms of judicial review, which formed the basis of the Bill.
Reforms proposed by the Bill
- Quashing Orders
Clause 1 of the Bill aims to provide the Courts with wider discretion when it comes to quashing orders.
A quashing order is a remedy in the form of an order which nullifies the decision made by the public body in question.
The new, wider, discretion would permit a judge to make a suspended quashing order. Such an order would provide the public body with time to prepare for the effect of the quashing order, including remaking their decision. During this period, the original decision would be regarded as valid.
In accordance with the Bill, the Court would also have the discretion to remove or limit the retrospective effect of any quashing order it makes. This means that the decision, albeit found to be unlawful, could remain valid up to the date of the Court’s order, which means that those affected by the decision would be unable to obtain redress for any harm caused up to that date.
While use of these new powers would be at the Courts’ discretion, the Bill provides that if a Court considers that a suspended or non-retrospective quashing order would provide adequate redress, the Court must make such an order unless there is good reason not to do so.
- Cart judicial reviews
A 2011 decision by the Supreme Court led to ‘Cart’ reviews becoming commonplace, usually in relation to immigration issues. Cart reviews are judicial review applications which challenge the refusal of the Upper Tribunal to grant permission to appeal a First-Tier Tribunal decision.
Clause 2 of the Bill excludes these decisions from judicial review. This means that the decision of the Upper Tribunal in respect of a request for permission to appeal would be final.
It is worth noting that some of the proposals contained within the initial consultation may still be dealt with by the Civil Procedure Committee. It is therefore highly likely that further reforms may still be introduced to this important area of law.
For an overview of judicial review generally, please see our article on ‘What is Judicial Review’,which has been published previously by our Commercial Dispute Resolution team.
Comment
Although the Bill appears to implement only minimal changes to judicial review, these changes have the potential to shift the balance away from claimants and in favour of public bodies. If the Bill becomes law, much will depend on how the Courts approach the granting of the new forms of quashing orders in place of the current system of immediate and fully retrospective quashing orders.
The Bill is currently at the Report stage in the House of Commons. It must complete all the parliamentary stages in both the House of Lords and Commons before it is ready to receive Royal Assent which will make it an Act of Parliament.