On 21 July 2021, the UK government published the Judicial Review and Courts Bill (the Bill), which broadly adopts the IRAL's recommendations on judicial review and legislation. The Bill puts forward two amendments to existing legislation, which we unpack below.
Proposed amendment #1: Encouraging suspended/prospective quashing orders
The first proposed legislative amendment gives additional flexibility to the courts to make suspended and/or prospective quashing orders. The courts arguably had this power already, but the Bill intends not only to clarify the position, but also to encourage the use of suspended and prospective quashing orders (which traditionally have been ordered very rarely).
Under the Bill, if the court is going to make a quashing order, and a suspended or prospective quashing order would offer adequate redress regarding the relevant defect, the court must make either of these orders, unless it sees good reason not to.
The government believes there are two benefits to this approach:
- First, where significant constitutional questions are raised, Parliament would have an opportunity to clarify or amend the position.
- Second, these orders could allow the defect in a decision to be corrected, rather than simply quashing it retrospectively.
Proposed amendment #2: Removing Cart judicial reviews
The second proposed amendment is to reverse the decision in R(Cart) v Upper Tribunal, removing the ability to judicially review decisions by the Upper Tribunal to refuse permission to appeal decisions of the First Tribunal.
The government's rationale for this amendment is the number of challenges via this route is high and the success rate is low – the IRAL has suggested a success rate of 0.22% (whereas the government believes it is 3%) – with the cost to taxpayers amounting to £300,000 a year.
Critics of the Bill have focused predominantly on the second proposed amendment, disputing the figures behind the cost/benefit analysis and arguing that the costs are lower and the chances of success higher. Since the removal of Cart judicial reviews applies particularly to the immigration tribunal, they further contend that the second proposed amendment would mean the removal of a safeguard that protects already marginalised people.
The Bill's detractors' overarching concern is that the Bill may set a precedent for the government to give itself the power to remove certain types of cases from the scope of judicial review, which could impact on the rule of law.
Find out more
We recently spoke at the Westminster Legal Policy Forum about the proposed changes to Judicial Review and will continue to monitor the Bill as it progresses through Parliament, as well as any other changes following the IRAL review (including the proposed procedural reforms which the CPR Committee has been invited to consider). To discuss the issues raised in this article in more detail, please reach out to a member of our team.
