The Judicial Review and Courts Bill: constitutional plumbing?

As explained in this previous blog, the controversial Judicial Review and Courts Bill is the culmination of a two-year process. Given its lengthy gestation period and the range of concerns (real or otherwise) expressed about judicial review, and judicial overreach in particular, it may come as a surprise that only the first two clauses contain measures relating to judicial review.

Quashing orders

Clause 1 makes provisions about quashing orders. Quashing a decision is one of the remedies that the High Court has discretion to impose in circumstances where it has found a body under review to have acted unlawfully. The legal effect of a quashing order is that it overturns or sets aside an unlawful decision of a public authority. Actions that were taken under it are no longer valid.

As drafted, the Bill would allow a court to suspend a quashing order and/or remove or limit any retrospective effect.

If the court was to make a quashing order and it appeared that a ‘suspended’ or ‘prospective’ condition would “offer adequate redress in relation to the relevant defect” a court would be expected to impose one or both of those conditions “unless it sees good reason not to do so”.

And when deciding whether it would be appropriate to impose either a ‘suspended’ or ‘prospective’ quashing order, the legislation would require a court to have regard to several non-exhaustive factors:

• the nature and circumstances of the relevant defect;
• any detriment to good administration that would result from the quashing (with or without being suspended or prospective effect);
• the interests or expectations of persons who would benefit from the quashing;
• the interests or expectations of persons who have relied on the impugned act;
• any action taken or proposed to be taken, or undertaking given, by a person with responsibility in connection with the impugned act; and
• any other matter that appears relevant.

In effect Clause 1 would confer a judicial discretion to grant considerable “breathing space” and flexibility to those against whom quashing orders might be made.

The Government’s view appears to be that this will restore the balance in favour of the interests of good public administration. In the explanatory notes to the Bill the Government gives examples of the desirability of permitting time for consultation on proposals to replace an administrative scheme or of allowing continued access to benefits or licences where these were subsequently found to be unlawful by a reviewing court.

Others may feel that if by this provision a court is to be influenced by administrative and public policy factors, that exposes a real risk to the vindication of legal rights and perhaps tip the scales of justice in the other direction when it comes to accessing concrete remedies, such as compensation. Any such concern may be assuaged by the independence of the judiciary who ought to be expected to exercise such new powers fairly. Indeed, there are already many cases where the declaratory effect of a judgment will mean that no further remedy, including a quashing order, is granted because it is not considered appropriate (or would serve no practical purpose).

A good illustration of this is the Supreme Court’s unanimous decision concerning the unlawful prorogation of Parliament in 2019. The Justices concluded that the Prime Minister’s advice to the Queen was unlawful, void and of no effect. That meant that when the Royal Commissioners walked into the House of Lords to issue the prorogation it was as if they had walked in with a blank sheet of paper. Parliament had not been prorogued. But there are plenty of other examples of judicial declarations the legal effect of which public bodies have been required to respond without the need for any quashing order, suspended, prospective or otherwise.

Ousting judicial review

Clause 2 imposes restrictions on the availability of judicial review in respect of certain decisions of the Upper Tribunal, known as ‘Cart’ judicial reviews.

The Bill would ‘oust’ the supervisory jurisdiction of the Administrative Court where permission to appeal from certain First-tier Tribunal decisions has been refused. But it does so only in quite specific and limited circumstances. For instance, if the decision under challenge involves any question of a breach of natural justice (such as allegations of bias or procedural impropriety in the determination of the application, for instance) then judicial review still remains available.

The Government perceives that this measure will remove unnecessary delay, particularly in immigration and asylum cases. The Ministry of Justice’s press release said that the change was “to prevent parties who have already been refused permission to appeal by both the First-tier and Upper Tribunal from trying a third time through a judicial review in the High Court.”

The Government decided not to proceed with its proposal to legislate for a general framework to clarify the effect of ouster clauses, but it has said that the legal text relating to the removal of the ‘Cart’ JR avenue of review will serve as a framework that can be replicated in other legislation.

So, this may be a testing of the waters. In future the Government may want to see if it can legislate in order to oust the supervisory jurisdiction of the courts in specific areas. Although the Government generally wins more judicial review cases than it loses it is plain from the IRAL that departments find the burden associated with defending them heavy.

What next?

Overall, these measures represent significantly watered down proposals. It’s unclear how either clause can promote the repeated aim of steering the judiciary away from purely political issues and controversy. But perhaps the outcome illustrates the value of expert input and the power of consultation in formulating policy and legislation instead.

The Government’s proposals and evidence base have been subject to a great deal of scrutiny by the Independent Review of Administrative Law and the huge response to public consultation on reform of judicial review even before the Bill was introduced to Parliament. We will now watch the passage of the Bill and the extent to which it’s revised and amended.

Separately, the Government has commissioned an independent review of another politically divisive subject: the Human Rights Act. The expert panel is due to report over the Summer and when it does, it will be interesting to see how the Government responds to their analysis.

 If you’re thinking of bringing, defending or intervening in a judicial review or would like advice on public law and regulatory affairs we can help. You can read more about our team here, or contact Nicola Mead-Batten directly at n.mead-batten@capitallaw.co.uk.