Judiciously reviewed mark II – reforms to judicial review enacted

The Judicial Review and Courts Act 2022 (the JRCA 2022) received Royal Assent on 28 April 2022. The JRCA 2022 makes a number of changes to judicial review, namely the means by which the High Court in England and Wales supervises the actions of public bodies (or bodies exercising functions of a public nature). We previewed the reforms in a 2021 blog post. In this article, we outline the final shape of the reforms and what the changes mean for public bodies and those (e.g. corporates) that interact with public bodies.

In summary, under the JRCA 2022:

• The Court will have the power to provide for so-called suspended quashing orders;
• The Court will have the power to award prospective-only quashing orders; and
• The effect of R (Cart) v The Upper Tribunal¹ has been reversed.

We provide more detail on these changes below.

Suspended quashing orders

By way of reminder, a quashing order is one of the main remedies available in judicial review. It is granted at the conclusion of a full hearing in circumstances where the claimant has been successful.

The JRCA 2022 provides for a new form of discretionary remedy – the suspended quashing order. This remedy will be available to the Administrative Court so that in judicial review proceedings the Court can make a quashing order which would essentially have a delayed effect. This would allow the defendant public body time to rectify its (otherwise unlawful) decision within a timeframe specified by the Court. If the public body failed to take the required action within that timeframe, the quashing order would formally come into force, quashing the impugned decision.

This remedy is likely to be welcomed by public bodies. Claimants too may welcome this remedy – since ultimately it will provide an adversely affected claimant with a reversal of the impugned decision. However, much will depend on the detail including for example the time afforded to a defendant public body to reverse what would otherwise be an unlawful decision.

Prospective-only quashing orders

The JRCA 2022 additionally provides for a new form of prerogative remedy – the prospective only quashing order. This remedy will be available to the Administrative Court so that, where such an order is made, the impugned decision would only be unlawful from the time of the Court's judgment.

Of all the measures enacted, this is more controversial. To date, and as a matter of conventional constitutional analysis, the effect of a quashing order is that the 'quashed' decision is rendered invalid from the point it was made; the decision is held to be void ab initio (i.e. having no legal effect from its inception).

A prospective only quashing order disturbs this approach and, in doing so, could have adverse effects on claimants in circumstances where they have successfully demonstrated that the defendant public body has acted unlawfully. Not only may this be used such that the impugned act is not, effectively, ‘undone’; but, for example, it could in principle deprive a claimant of a claim to damages where the illegality relates to a breach of the claimant's rights under the European Convention on Human Rights (ECHR) (as the ECHR has been incorporated into domestic law pursuant to the Human Rights Act 1998).

Conversely, the new remedy provides the Administrative Court with greater flexibility in how it determines claims and is likely to benefit public bodies where the order is made. Much will depend on how the Court decides to use its new powers and impose this remedy, which it may only do once it has considered the list of mandatory factors set out in the Act.

Reversing Cart

Finally, the JRCA 2022 reverses the effect of the UK Supreme Court's judgment in R (on the application of Cart) v The Upper Tribunal [2011] UKSC 28. This will mean that decisions of the Upper Tribunal will no longer be judicially reviewable where that tribunal has refused permission to appeal from a decision of the First Tier Tribunal.

Whilst some commentators have criticised this reform as amongst other things restricting access to justice, it is likely to reduce the burden on the Administrative Court.

Proposed v final reforms

The JRCA 2022 has long been in the works. As we noted in our 2021 blog post, the then Bill stemmed from proposals – all aimed at reducing the purported burden on public bodies – canvassed in the Conservative Party's 2019 general election manifesto. Following the success of the Conservative Party in that election, the Government established an 'Independent Review of Administrative Law' (IRAL) to consider the scope for such changes to public and administrative law and the Court's supervisory jurisdiction. When IRAL reported, it suggested a number of practical, incremental changes. However, it shied away from endorsing the Government's more radical changes. When the Bill emerged, some of these measures had been dropped.

There remains some consternation around JRCA 2022 as enacted. In particular, prospective only quashing orders could potentially deprive claimants (including corporates in commercial judicial review litigation) of full relief even where such claimants have established illegality on the part of the defendant. In this respect, much will depend on how the Court uses these new remedies. Criticism has also been made on the basis that many of the more mundane, practical reforms suggested by IRAL in order to secure efficiencies did not make their way into the Act.