The Judicial Review and Courts Bill (“the Bill”) has recently completed its first passage through the House of Commons and is currently progressing through the House of Lords.
This blog focuses on the proposals for judicial review rather than the other changes in the Bill relating to how some UK courts operate. We’ll look at why the Government is proposing changes to judicial review and will focus on the current version of the Bill dated 26 January 2022 (as published after the Report Stage in the House of Commons). It is possible that further amendments may be made as the Bill completes the parliamentary process. The different versions of the Bill can be found here.
Judicial review provides a means by which an individual or a group affected by a public authority’s decision can challenge that decision. Examples of public authorities that can be judicially reviewed include the government, ministers, local councils, health authorities, the police, and regulators (such as the Office for Students). Universities can also be subject to judicial review in some circumstances.
Many challenges have been brought under the judicial review process on many different issues. Notable cases include challenges to the raise in tuition fees to £9,000 (the Hurley case) and more recently challenges to the Government regarding climate change by Plan B Earth.
Judges have a specific role in judicial review and there has long been a tension in interpreting and applying legislation in accordance with Parliament’s intent. Judges in judicial review cases have been extremely cautious (especially when applying rules to decisions on the allocation of resources). Nevertheless, over the years judges have been highly critical of governments when they have exceeded their powers or breached rules of procedural fairness. Recently, the Government has stated that the courts are getting too involved in politics and are looking at the rights and wrongs of a decision rather than looking at how the decision was made. In particular, the Government has cited the Supreme Court’s judgments that triggering Article 50 by Royal Prerogative would be unlawful and the Prorogation of Parliament in September 2019 was unlawful.
Indeed, the Conservative election manifesto in 2019 stated that they would ensure that judicial review “is not abused to conduct politics by another means or to create needless delays”. Once elected, the Government launched the Independent Review of Administrative Law (“IRAL”) which reported in March 2021. The Ministry of Justice then set up its own consultation.
The Judicial Review and Courts Bill was introduced to the House of Commons on 21 July 2021. The Bill seeks to make two changes in respect of judicial review. First to give judges discretion to modify a quashing order and second to exclude judicial review from the Upper Tribunal’s permission to appeal decisions.
Modified quashing orders
The Bill proposes to add a new section 29A to the Senior Courts Act 1981 which will give judges in England & Wales the discretion to modify quashing orders by specifying a date when the order comes into effect and/or remove or limit any retrospective effect of the quashing order. The Bill contains a presumption that the courts must make modified quashing orders in specified circumstances, unless there is good reason not to. The Bill also lists factors the court must have regard to in determining whether to make a modified order.
Concerns have been raised that suspending the effect of quashing orders to a later date and/or limiting the retrospective effect of a quashing order takes away the impact that a public authority has acted unlawfully. It means that the claimant may not obtain redress which may in turn deter people from bringing challenges. Judicial review serves a purpose to ensure that public authorities act within their powers and make decisions rationally and reasonably.
The IRAL did not recommend the introduction of prospective only quashing orders. The explanatory notes to the Bill also state that responses to the Ministry of Justice’s consultation included mixed views as it was considered that there were few situations where it would be appropriate.
Excluding Judicial Review of the Upper Tribunal’s permission to appeal decisions
The Bill proposes to add a new section 11A to the Tribunal, Courts and Enforcement Act 2007 (“TCEA 2007”) to make it clear that the decision of an Upper Tribunal regarding permission to appeal is “final and not liable to be questioned or set aside in any other Court”.
The Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision and the decision cannot be judicially reviewed.
The exclusion of judicial review does not apply if there is any question as to whether the Upper Tribunal had a valid application before it, whether the Upper Tribunal was properly constituted or whether the Upper Tribunal has acted in bad faith or in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.
This provision is an ouster clause because it seeks to exclude judicial review in certain circumstances.
The reason the Government is making this proposal is because an Upper Tribunal’s decision to refuse permission is usually final and there is no right of appeal to the Court of Appeal. However, over the last ten years, there has been a rise of judicial review cases regarding refusal of permission to appeal particularly in relation to immigration and asylum cases. In 2011, the Supreme Court specifically determined in Cart v The Upper Tribunal that decisions by the Upper Tribunal to refuse permission to appeal could be judicially reviewed. However, this was not unlimited and the Supreme Court considered what level of independent scrutiny was required by the rule of law and concluded that judicial review could only be brought in limited circumstances.
The ouster clause is designed to discontinue the arrangements set out by the Supreme Court. Further the Ministry of Justice has also stated that “it is expected that the legal text that removes the Cart judgment [i.e. the new section 11A of the TCEA 2007] will serve as a framework that can be replicated in other legislation.”
Concerns have been raised that the Government may use this approach to further insulate itself from the scope of judicial review.
The Bill will need to progress through the House of Lords and back to the House of Commons before it is passed into the law.
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