The Judicial Review and Courts Bill – The first of a thousand cuts?

United Kingdom

On 21 July 2021, the Judicial Review and Courts Bill (“Bill”) was introduced to Parliament. Part 1 of the Bill deals with the changes to judicial review and Part 2 deals with procedural issues for Courts, Tribunals and Coroners (which is outside the scope of this update). The legal community has awaited the judicial review provisions of the Bill with trepidation since the Government set out its intention in its 2019 election manifesto to reform judicial review such that it “is not abused to conduct politics by another means or to create needless delays”  (likely a reaction to the Supreme Court prorogation ruling).

The Government then launched the Independent Review of Administrative Law in July 2020 (“IRAL”), as part of its push for judicial review reform that many have considered would undermine the core purpose of judicial review: to keep public authorities accountable in the decisions that they make. The Bill comes after the IRAL Panel’s report recommending changes to judicial review (the “Report”), the Government’s response to the Report, and the Government’s response to its consultation on the changes to judicial review (which was published alongside the Bill and which can be accessed here) (the “Consultation Response”).

Adoption by the Bill of the recommendations in the Report

In the Report, the IRAL Panel had recommended that:

  1. Courts should have a discretion to implement suspended quashing orders “where appropriate” and on a case-by-case basis;

  2. Cart judicial reviews could be ousted;

  3. a number of procedural improvements or clarifications be implemented (including in relation to developing and publishing the criteria for permitting interventions, to clarify the scope of the duty of candour and possibly following the example of Northern Ireland by abolishing the requirement for claims to be brought “promptly”); and

  4. the Government refrain from making any changes in respect to standing.

In respect of each of the recommendations above, the Bill:

  1. introduces suspended quashing orders or quashing orders that will have limited or no retrospective effect (“alternative quashing orders”), although with more prescription than the complete discretion that was recommended in the Report – the Bill suggests that alternative quashing orders ought to be utilised in place of a quashing order unless there is good reason to depart from this presumption;

  2. reverses the Supreme Court decision in R (Cart) v Upper Tribunal [2012] 1 AC 663 (“Cart”), by way of an ouster clause that states that decisions of the Upper Tribunal to refuse permission to appeal a First Tier Tribunal decision is final, and cannot be appealed to a higher court;

  3. does not adopt any of the recommended procedural improvements or clarifications; and

  4. follows the Report’s recommendations by refraining to make any changes to the requirements for standing.

We explore the two proposals that the Bill does adopt below.

Alternative quashing orders

The Bill proposes inserting a new section 29A of the Senior Courts Act 1981 to introduce alternative quashing orders.

Introduction of suspended quashing orders

While Courts can currently grant quashing orders (which are orders setting aside the public authority’s decision or conduct under challenge), the Bill allows a court to order “suspended quashing orders” which would mean that the public authority would have time to remedy the impugned act and avoid the quashing order coming into effect. The Bill also allows the Court to impose conditions on the public authority which the public authority must fulfil as part of remedying the impugned act.

Limited or no retrospective effect of the quashing order

Ordinarily, a quashing order has immediate effect such that the parties are left as if the public authority had not committed the impugned act. The Bill now allows a Court to make a quashing order that includes a provision removing or limiting any retrospective effect of the quashing. This means that:

  1. the impugned act is valid unless or until the quashing takes effect; and / or

  2. even if the impugned act is quashed, it does not affect the validity of the decision or conduct prior to the time of the quashing decision.

Removal of the retrospective effect of quashing orders may, in some cases, assist in preserving the interests of others who had benefited from the impugned acts. However, they may also allow public authorities to avoid compensating (successful) claimants for harm already caused.

Factors the Courts must consider when considering or granting quashing orders

The Bill goes beyond the proposal in the Report to allow the Courts to award suspended quashing orders as they see fit, and sets out a list of non-exhaustive factors the Courts must consider when deciding whether to impose a suspended quashing order or a quashing order with limited or no retrospective effect, including:

  1. the nature and circumstances of the relevant defect (where the “defect” is the basis on which the Court is making the quashing order. The “defect” is different to the “impugned act”, which is the particular action or decision of the authority under judicial review);

  2. any detriment to good administration that would result from exercising or failing to exercise the power;

  3. the interests or expectations of persons who would benefit from the quashing of the impugned act;

  4. the interests or expectations of persons who have relied on the impugned act;

  5. so far as appears to the Court to be relevant, any action taken or proposed to be taken, or undertaking given, by a person with responsibility in connection with the impugned act; and

  6. any other matter that appears to the Court to be relevant.

The Bill also requires the Court to issue alternative quashing orders as the default order, unless the Court sees a “good reason” not to do so, in circumstances where:

  1. the Court is to make a quashing order; and

  2. it appears to the Court that an alternative quashing order would offer adequate redress in relation to the relevant defect.

Given that quashing orders are one of the most common remedies granted in judicial reviews, if this provision is passed, it may well be that these are mostly replaced by alternative quashing orders under the new provisions.

Ouster of Cart judicial reviews

Section 13(8)(c) of the Tribunals, Courts and Enforcement Act 2007 provides that decisions of the Upper Tribunal on applications for permission to appeal may not be further appealed. In 2011 the Supreme Court in its decision in Cart held that decisions of the Upper Tribunal to refuse permission to appeal a decision of a First Tier Tribunal may be appealable, if the decision of the First Tier Tribunal was affected by an error of law (referred to as “Cart judicial reviews”).

The Bill proposes the removal of the ability to bring a Cart judicial review, which means that the Upper Tribunal’s decision to refuse permission to appeal a decision of the First Tier Tribunal will be final. The Bill sets out the very limited circumstances in which this amendment to Cart judicial reviews does not apply, including by way of example where the decisions “involves or gives rise to any question as to” whether the Upper Tribunal:

  1. has or had a valid application for permission before it;

  2. is or was properly constituted for the purpose of dealing with the application; or

  3. is acting or has acted in bad faith or in fundamental breach of the principles of natural justice.

Comment

The Bill appears to implement minimal, modest changes. However, these changes have the potential to shift the balance away from claimants and in the favour of public authorities. A lot will depend on how and when public authorities will seek to take advantage of the Bill, and how Courts approach the granting of alternative quashing orders in place of immediate and fully retrospective quashing orders.

While this may seem like a limited change to judicial review, in reality it is likely to significantly reduce the exposure of public authorities to having to compensate claimants. It is already fairly difficult for claimants to successfully claim damages in judicial review proceedings, but quashing orders have been the primary and most attractive remedy for claimants who seek to have the public authority unlawful conduct ‘undone’. Prospective quashing orders or orders that are suspended subject to the fulfilment by the public authority of certain conditions could, for many claimants, defeat the value of bringing a judicial review claim.

The Government’s response to the Report and its Consultation Response indicated the Government had much more ambitious plans for judicial review reform, for example the Consultation Response states that “the Government will continue to think about the way Judicial Review is operating in the round and whether further changes, including the procedural measures on which we consulted, may be needed”. These changes may yet be implemented in this Bill or by way of subsequent amendments.

The Bill must also be seen in the context of other changes to the judicial review landscape: the raft of primary and secondary legislation that was or is being implemented as a result of Brexit has come under much criticism for the wide powers they afford Government Ministers. Further and most recently, the Government have called for evidence and suggestions for reform of the operation of the Human Rights Act 1998 (the “HRA”). While the scope of the HRA is not under review, the Government have called for evidence in relation to (1) the relationship between the judiciary, the executive and the legislature and (2) the interaction between European and UK jurisprudence. The results of the Government’s consultation will be relevant to judicial review, and in particular, to the protection of claimants’ rights and remedies.  In light of this changing landscape, incremental changes to the operation of judicial review, including those made in the Bill, have increased significance.

The Bill is awaiting a second reading (and substantive debate) in Parliament, dates for which are yet to be announced. Once the second reading, committee review, and report are undertaken, the Bill may proceed to a third reading in Parliament and review by the House of Lords. Assuming that it is passed at law, it is likely to come into force in 2022 at the very earliest.

The authors would like to acknowledge the assistance of Emma Rodrigues, paralegal at CMS London, in preparing this article.