Author
Stephanie High

Stephanie High

Senior associate

Read More
Author
Stephanie High

Stephanie High

Senior associate

Read More

6 September 2021

Disputes Quick Read – 4 of 39 Insights

Disputes Quick Read: Judicial Review and Courts Bill – unpacking the UK government's proposed amendments

  • Quick read

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.

In this series

Disputes & investigations

Disputes Quick Read: Care required when drafting SPA claim notices

QUICK READ

by Multiple authors

Disputes & investigations

Disputes Quick Read: The latest on Unexplained Wealth Orders

QUICK READ

by Multiple authors

Disputes & investigations

Disputes Quick Read: Tomlin Orders – ensuring the confidentiality of settlement terms

QUICK READ

by Multiple authors

Disputes & investigations

Disputes quick read: pilot error?

by Andrew Howell

Call To Action Arrow Image

Latest insights in your inbox

Subscribe to newsletters on topics relevant to you.

Subscribe
Subscribe

Related Insights

Empty chairs in jury box
Disputes & investigations

Disputes Quick Read: Will litigants be compelled to participate in alternative dispute resolution?

2 August 2021
Quick read

by David de Ferrars and Stephanie High

Click here to find out more
sidebar-season-1-boxset
Disputes & investigations

Sidebar – Season 1 box set

The Future of Litigation

4 May 2021
Quick read

by multiple authors

Click here to find out more
Close-Up Of Lady Justice
Disputes & investigations

Disputes Quick Read: Not your prerogative – the Independent Review of Administrative Law reports its recommendations on judicial review

21 April 2021
Quick read

by Stephanie High

Click here to find out more