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1 August 20216 minute read

Judiciously Reviewed? Government outlines proposed reforms to judicial review

On 21 July 2021, the UK Government laid the Judicial Review and Courts Bill 2020-21 (the Bill)1 before Parliament. The Bill contains a number of proposals to reform judicial review; the means by which the High Court of England and Wales holds public bodies (and bodies exercising public functions) to account for the exercise of public law powers. The intention to reform judicial review has been long heralded by the current Government with proposals first canvased in the Conservative Party’s 2019 general election manifesto, and a commitment to legislate to provide for reform included in the Queen’s Speech of 2021. The Bill represents the culmination of this process.

Background

The laying of the Bill follows the publication of the Independent Review of Administrative Law’s (IRAL) report into administrative law and judicial review in March 2021. IRAL, which had been commissioned by the Government, made a number of recommendations in respect of judicial review, including providing the Court with additional powers to make new forms of quashing orders and to discontinue so-called Cart judicial reviews.

In March 2021, the Government consulted on IRAL’s recommendations (the Consultation), during which the Government included several further potential proposals for judicial review reform above those recommended by the IRAL report.2 Many of these proposals (as well as the Government’s wider reform agenda) appeared to stem from the Government’s concern (manifest in the aforementioned 2019 general election manifesto) that the judicial review process had expanded at the expense of orderly and efficient administration. Accordingly, some judicial review practitioners had expected that the legislation to emerge from this process to be draconian in effect in that it would seek to drastically curb the supervisory jurisdiction of the High Court. Were these concerns justified? What is in the resulting Bill?

The Bill

In summary, the Bill is relatively modest in nature. It does not include any of the major recommendations for the codification or constraint of judicial powers in the context of judicial review that had been feared. It does, however, include important (and potentially consequential) provisions, which we consider in the paragraphs which follow.

Firstly, the Bill removes Cart judicial reviews. In this respect, the Bill enacts one of the recommendations of IRAL. Should the Bill become law, a person would no longer have the ability to judicially review a decision of the Upper Tribunal to refuse permission to appeal from the First-tier Tribunal.

Secondly, the Bill provides for suspending and limiting quashing orders, which veto the administrative decision under review, by way of amendments to the Senior Courts Act 1981. Again, this to some extent reflects one of the recommendations of IRAL. To this effect, clause 1 of the Bill provides as follows:

“ (1) A quashing order may include provision—

(a) for the quashing not to take effect until a date specified in the order, or

(b) removing or limiting any retrospective effect of the quashing.

The provision continues in that where a quashing order includes a provision under subsection (1)(a) “the impugned act” is “upheld” until the quashing takes effect and is to be treated until such time “as if its validity was …unimpaired” (s.29A(3), (4).

Before exercising this power, proposed new subsection (8) of section 29A provides that the Court must have regard to certain factors in deciding whether to exercise its powers under subsection (1). Such factors include, for example, the potential effects on third parties who may have relied, or are relying on, the act in question in good faith that it was lawfully made.

Finally, subsection (9) and (10) of the proposed new section 29A goes on to apparently introduce a presumption in favour of these features being included in a quashing order if they would “as a matter of substance, offer adequate redress in relation to the relevant defect” although it is not entirely clear what the purpose of this provision is it will presumably require the parties to a judicial review to adduce evidence and make additional submissions as to the practical consequences of when a decision should be quashed. In cases where a decision is only quashed on a prospective basis would presumably immediately deprive persons adversely effected by the decision in the interim of any redress which could be of concern where such persons are not directly represented before the court making the relevant decision.

What does this all mean?

In some respects, the introduction of this new remedy is to be welcomed. It will afford the Court an additional remedy and will thus provide it with flexibility in how to correct public law wrongs. However, there are potential drawbacks to this. Primarily, this new remedy has the potential to adversely affect the position of third parties affected by a judicial review claim: i.e. those parties who would, as a matter of law, be afforded rights of action and/or defences against a public body as a result of a finding of unlawfulness (and consequential quashing order) as a result of that public body’s illegality. This is something which merits careful scrutiny by Parliament during the Bill’s passage. Removing third party rights in this manner would ordinarily be reserved to Parliament through primary legislation.

Conclusion

As we discussed in our Response, it is an important part of the rule of law that Government is accountable and this accountability is potentially side-stepped if the courts have the power to restrict the consequences of executive decisions being found to be unlawful. Further delay in the context of certain types of judicial review challenges could become a far more sensitive issue if the relief granted by the courts is only to be prospective in effect.

Judicial review is key to protecting the rights of individuals and entities. The judicial review process is the rule of law in action. Accordingly, any reform to judicial review should merit careful scrutiny. Although the measures outlined in the Bill are relatively modest nature, they could still be consequential. Parliament should in particular consider the potential consequences of the proposed new suspending and limiting quashing orders. We will update clients as the Bill progresses and is enacted.

For more information contact authors.


1 GOV.uk Policy Paper, “Policy paper “Judicial Review and Courts Bill”.
You can read DLA Piper’s response to the Consultation here.

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