The Judicial Review and Courts Bill, which recently had its first reading in the House of Commons and is set to come into force in 2022, does not go as far as anticipated in reforming the Judicial Review process.
The Bill has been introduced following the Independent Review of Administrative Law ("IRAL"), and a subsequent Government consultation process. Despite the modest proposals put forward by the IRAL panel in its report, the tone of the Government consultation suggested that far-reaching reforms were on the horizon. Mishcon de Reya LLP responded to the IRAL's Call for Evidence here and expressed its concerns in relation to the Government's consultation here.
Surprisingly, the wholesale reforms which were initially mooted have not found their way into the Bill. The Bill instead focuses on (1) changing the remedies available to the court and (2) altering the use of judicial review as a means of appeal from tribunals. The now former Lord Chancellor, Robert Buckland QC MP, suggested that this Bill is "giving judges the powers they need to ensure the Government is held to account, while tackling those who seek to frustrate the court process."
The balancing act in the debate on reform centres on, on the one hand, preserving the courts' ability to hold Parliament and the Executive to account, and on the other, to allow the Executive to effectively govern without the purportedly improper overextension of the courts.
The Reforms
- Quashing Orders (Clause 1)
The Bill seeks to introduce a new section 29A to the Senior Courts Act 1981, allowing the courts to suspend the effect of quashing orders and limit their retrospective effect. The purpose of a suspended quashing order is to allow a body time to correct an unlawful decision. During the period of suspension, the court could choose to grant temporary legal effect to the unlawful provision.
The reasoning behind these reforms is to allow the Government to avoid the lengthy process of introducing bills to Parliament in order to plug legislative gaps or retrospectively amending legislation that the courts have deemed unlawful. Further, the Government argues that limiting the retrospective effect of quashing orders preserves the interests of those who have previously benefited from the impugned act.
While some commentators believe that this is an insignificant addition to the judicial arsenal, as a declaration by the court could have a similar effect, others suggest that Parliament and the Executive may be seceding an element of legislative power and scrutiny to the courts.
Indeed, it will be interesting to see, if this legislation is enacted, whether it does benefit claimants. On its face, greater judicial flexibility may lead to more decisions in favour of claimants, as the court would have the power to avoid rendering whole pieces of legislation invalid. That said, it may simply serve to further protract the process of obtaining a remedy if claimants are required to re-apply to the courts at the end of the period of suspension if the decision maker has not acted in accordance with the court's order. Similarly, it may simply serve as a useful tool for public authorities to avoid compensating claimants for harm suffered as the courts may utilise the suspension of rulings until the public authority has rectified its particular breach – leaving claimants without any specific redress.
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The Ouster Clause (Clause 2)
Clause 2 of the Bill removes the jurisdiction of the High Court to review the Upper Tribunal's decisions on applications for permission to appeal against certain decisions made by the First-Tier Tribunal. Therefore, reversing the Supreme Court's decision in R (on the application of Cart) v The Upper Tribunal (Respondent) [2011] UKSC 28 ("Cart"). Mishcon's analysis of the proposed removal of Cart judicial reviews from the judicial review framework is here.
The Ministry of Justice believe that this "legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation" and therefore "will draw a line under decades of uncertainty and confusion as to their proper use".
The Government's primary reason for this reform appeared to be based on proportionality : in that it is not proportionate to diverge large amounts of public resources towards cases such as these, where the success rate is deemed so low. As was noted in Mishcon's submissions in response to the Government's Consultation, the removal of Cart judicial reviews removes a key and final source of protection where an important point of law or practice needs to be addressed, usually in human rights or asylum cases, where individuals’ fundamental rights are in question and at risk. In addition, the success rates upon which the proportionality arguments were based have been widely challenged.