Judicial Review and Courts Bill – limited proposals which lead to unexpected consequences?


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The Government have now published the Judicial Review and Courts Bill which was presented to Parliament on Wednesday 21st July. 

Parliament on Wednesday 21st July. The key proposed changes to JR are as follows:

  1. Suspended quashing orders – the Court will have discretion to give the Government time to rectify the decision or offending legislation before this is quashed. In the interim period, the act subject to challenge is upheld. 
  2. Limiting or removing the retrospective effect of quashing orders – judges can determine the Government’s action unlawful without providing a remedy for any previous loss suffered. 
  3. Reversing Cart by using an ouster clause – the Supreme Court in R (on the application of Cart) v Upper Tribunal [2011] decided that where the First-Tier Tribunal had made an error of law and the Upper Tribunal (UT) had refused permission to appeal, the refusal could be subject to JR by the High Court. The claim for JR also needed to raise an important point of principle or practice or needed some other compelling reason to hear it. The Bill provides that the decision of the UT is final and not liable to be questioned or set aside in any other Court thus ousting any claim for JR.  

In some respects the proposals are limited in comparison to what was set out in the Government's consultation published in March 2021. The Lord Chancellor has though dropped heavy hints in public that this is only the start of the programme for constitutional reform. The next stage is likely to be the outcome of the Independent Human Rights Act Review.

Although the proposals above around quashing orders may give the idea that the Court will have discretion to make the order that it sees appropriate, the wording of the Bill also states that where the options under (1) and (2) above would offer "adequate redress" then the Court must utilise these unless there is a good reason not to. 

In terms of ouster clauses, it may be that the wording in the Bill becomes a model for legislation down the line. In this case, no JR can be brought of the UT's decision, even if it has made the decision in error. There would still be provision for a challenge to a UT refusal where it involved the validity of an application for permission to appeal, where the UT was not properly constituted, the UT has acted in bad faith or in fundamental breach of the principles of natural justice. The Government say that although no previous ouster clause has been fully upheld by the Courts they are confident this one "will be sustained".

The fact sheet published along with the Bill noted that the Government has committed to "restoring the balance between Government, Parliament and the Courts" and that "[an] essential part of this is to strengthen Judicial Review". At the same time they want to be able to "effectively and efficiently execute Parliament's intent". There is a possibility that these changes could drive further litigation and therefore undermine any such principal of efficiency. Another argument is that the proposals could hand even more power to the Courts as they would allow a judge to validate unlawful actions and legislation deemed invalid without input from Parliament. Those with private law rights may find themselves without a remedy as a result of litigation to which they were not a party. 

There will always be a balance to be struck between individual rights and the mechanisms of the state, the question is will these proposals, and any further proposals to come, skew these outside the norms we have come to expect. 

 
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