Reviewing Judicial Review – the new Act
On 28 April 2022, the Judicial Review and Courts Act (JRCA) received royal assent and became law.
This follows a government consultation on judicial review reform, and introduces changes seeking to provide more flexibility for the courts to determine remedies in judicial review claims and improve the efficiency and structure of the court system when dealing with judicial review.
In this article, we look specifically at the changes to judicial review practice and procedure. Whilst some changes have extended the powers of the court, for example in relation to quashing orders, some changes have restricted the availability of judicial review, particularly around the review of decisions of the Upper Tribunal.
So what does this mean for practitioners and clients working in the public sector?
In judicial review, a quashing order is an order of the court which nullifies or invalidates a decision (or instrument) made by a public authority and can be made where a public authority has been found to have acted unlawfully including outside the scope of its powers (ultra vires), irrationally or in a way that was procedurally unfair.
Prior to the JRCA, quashing orders were deemed to have immediate retrospective effect and rendered a public authority's decision invalid from the time the decision was made.
However, section 1 of the JRCA makes two important changes to this position by giving the courts the power to:
- order that the quashing will not take effect until a date specified in the order (a 'suspended quashing order'); and / or
- make an order which removes or limits the retrospective effect of the quashing (a 'prospective-only quashing order').
If a suspended quashing order is made, the public authority's decision will be upheld until the quashing takes effect. Where a decision is subject to a prospective-only quashing order, any previous actions based on that decision would be upheld to the point or in the circumstances specified by the quashing order.
When considering whether to make either a suspended quashing order or a prospective-only quashing order, the courts are required to take into account factors including the nature and circumstances of the relevant defect, the interests or expectations of persons who would benefit from the quashing of the decision or who have relied on the decision, as well as any other relevant matters.
Whilst these changes are intended to give the courts greater flexibility to make an order appropriate to the circumstances of the case, these changes are likely to be of general concern to claimants: the award of a prospective-only quashing order could mean that a successful claimant nonetheless does not receive an adequate remedy if they had been impacted by a decision prior to quashing order becoming effective. For public bodies, these changes may mean relief from the difficult process of unwinding the effects of a now nullified decision.
However, as the award of a suspended quashing order or prospective-only quashing order is a matter of discretion for the courts, it remains to be seen what effect these will have in practice. Practitioners, claimants and defendants alike will be watching to see how the case-law develops and the courts use their newfound powers.
Removal of Cart Judicial Review
The second notable change to judicial review procedure which has been implemented by the JRCA is to limit the circumstances in which a party can challenge, by way of judicial review, a decision by the Upper Tribunal (UT) to refuse permission to appeal a decision of the First-Tier Tribunal (FTT). The FTT has jurisdiction over a broad range of matters, including: local government standards, information rights, transport, immigration, asylum and nationality matters, health, education and social care, land registration, agricultural land and drainage, and tax.
Previously, such appeals were known as Cart Judicial Reviews, after the Supreme Court in R (Cart) v Upper Tribunal  UKSC 28 held that decisions by the UT to refuse permission to appeal a decision of the FTT were themselves potentially subject to judicial review.
In response, the JRCA has introduced a new Section 11A into the Tribunals, Courts and Enforcement Act 2007 (TCE 2007), which is likely to limit use of Cart Judicial Review. The new provision states that decisions of the UT refusing permission to appeal are final and cannot be questioned or set aside in any other court unless specific circumstances arise, such as the UT acting in bad faith.
Section 11A does not have retrospective effect and will only apply to decisions of the UT which are made after the provision has come into force.
This change to judicial review was brought about as a result of the government's consultation, which contended that whilst Cart Judicial Reviews represented the highest volume of judicial review claims issued, only 3% of these claims resulted in permission to appeal to the UT and the UT finding the original appeal in favour of the claimant (although the approach to the analysis of the figures has been criticised by those responding to the consultation).
Following the introduction of the JRCA, where the UT has refused permission to appeal against a decision of the FTT, an appeal can only be brought in the Supreme Court, with either the permission of the UT or the Supreme Court and can no longer be challenged by way of judicial review.
Although a number of the proposals originally made by the government did not make it into the final form of the JRCA, these two changes may lead to significant potential impacts on claimants who may find they lose access to a remedy or route of appeal which was previously available. This will likely impact how claimants perceive the process and how they balance the risk of pursuing a challenge and informing whether they take that risk at all.
For public sector bodies, where a quashed decision would previously have been nullified from the date the decision was made, now no practical remedy will be available for those adversely impacted during any period that the court allows the decision to remain effective. This will mean that decision could well have a lasting effect in a way that it could not before.