Judicial Review and Courts Bill: 'better for this government, but not for its citizens'

The government has published its response to the consultation on Judicial Review reform, which closed in April 2021.

It has proposed two major changes under a new Judicial Review and Courts Bill – certain decisions of the Upper Tribunal will be protected from Judicial Review, thereby removing Cart Judicial Reviews; and judges will have discretion to suspend quashing orders and remove or limit the retrospective effect of quashing orders.

According to the government, the proposed bill will deliver on its manifesto commitment to ensure “Judicial Review is available to protect the rights of the individuals against an overbearing state, while ensuring… it is not abused to conduct politics by another means or to create needless delays”.

In July 2020, the Independent Review of Administrative Law (the Review), chaired by Lord Faulks QC, was established to “examine trends” and “deliberate on any recommendations for reform”.

Its key areas of focus were codification; non-justiciability; the grounds of review and remedies, and procedure. The Review made two recommendations for change in the substantive law, as well as various recommendations for changes in procedure, including:

• legislation for the introduction of suspended quashing orders;
• legislation to reverse the effect of the Supreme Court decision in R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent) [2010] EWCA Civ 859 and re-affirm that decisions of the Upper Tribunal to refuse permission to appeal are not subject to the supervisory jurisdiction of the High Court;
• certain changes in procedure to be considered and taken forward by the Civil Procedure Rule Committee (CPRC)
  • to remove the requirement for a claim to be issued “promptly”, but retain the three-month time limit;
  • to provide further guidance on intervenors;
  • to provide for an extra step in the procedure of a reply, to be filed within seven days of receipt of the acknowledgement of service.

Following the Review, the government launched a public consultation in March. It has refined its proposals based on responses to the consultation. The Judicial Review and Courts Bill will:

• protect certain decisions of the Upper Tribunal from Judicial Review, subject to exceptions, thereby removing Cart Judicial Reviews;
• introduce the power to make two modifications to remedies, to be available at judges’ discretion:
• • the ability to suspend quashing orders, meaning an order will only come into effect after a specified period, to allow concerned parties to make transitional arrangements to manage the order’s impact;
  • the ability to remove or limit the retrospective effect of quashing orders, meaning a court may prohibit an unlawful decision from being employed in the future (or from a specified date) without invalidating any prior actions. The government said “this may mitigate any detrimental effects on concerned parties whose affairs had relied on the decision until that point”.

The bill will also introduce a number of procedural measures across the criminal courts, employment tribunals and coroner’s courts, which the government claims will “streamline processes, saving time and money for the court system, and supporting court recovery”.

The bill will remove obligations requiring the City of London Corporation to provide county and magistrates’ court capacity at their current locations, “paving the way for a new courthouse on a different site”.

Daniel Machover, head of civil litigation at Hickman & Rose Solicitors, has not welcomed the government’s announcement: “This Act will lead to increased injustice as ordinary people, who have been treated unlawfully by the state, are unable to rectify this in court.

“The government has claimed that the purpose of the Bill is to create a ‘better balance’ between the rights of citizens to challenge State decisions and what it calls ‘effective government’.

“But this is a false dichotomy as the two are not in conflict. Human rights and the rule of law go hand in hand with proper democratic government”.

He added: “Judicial Reviews are a vital means by which ordinary people can hold a state which acts unlawfully to account.

“According to the government’s own data, 40 - 50 per cent of Judicial Reviews (bar so-called Cart Judicial Reviews) are successful – meaning almost half the decisions they challenged were unlawful.

“This Bill’s proposal to restrict both who can bring a Judicial Review and also the remedies available to them if successful will mean that more unlawful acts go unchallenged".

Machover concluded: “This may be better for this government, but not for its citizens, or society as a whole, or the rule of law.”