Judicial Review and the Courts Bill: Proposed Judicial Review Reform

Attempts to narrow the scope of judicial review have long been on the political agenda of the Conservative Party. Following the Independent Administrative Law Review (‘IRAL’) and subsequent government consultation on judicial review reform, the then Lord Chancellor Robert Buckland introduced the Judicial Review and the Courts (‘The Bill’) in the House of Commons on July 21, 2021. The Bill is pending in Parliament and is currently in committee.

As we pointed out in our previous blog following the announcement of the bill, the proposed reforms are, on the face of it, softer than feared. Nevertheless, the bill proposes to make significant changes to the remedies available in judicial review proceedings and also to limit the court’s jurisdiction.

We examine these proposed changes below.

Suspended cancellation orders

Section 1 of the Bill proposes to insert a new section 29A into the Superior Courts Act 1981 (“the Act”). The effect of the new section 29A(1)(a) would be to give the court the power to issue a conditional rescission order which would not take effect until a predetermined time in the future, after which the unlawful defect the object to the order would become null and void and would have no legal effect. Until that time, the illicit defect to be canceled by the order would be maintained and considered valid.

The introduction of conditional rescission orders has been recommended by the IRAL in order to increase the flexibility of the remedies available to the court in judicial review proceedings. The Explanatory Notes to the Bill echo the IRAL Committee’s view that suspended rescission orders can be helpful in “circumstances in which a case raises significant constitutional issues or in which reversal of a decision would present significant risks to national security or the public interest” because they would give Parliament time to change or clarify the law before the annulment order takes effect, and also”in cases where a suspended cassation order would make it possible to correct the defect”.[1]

Most commentators have been broadly in favor of the introduction of conditional rescission orders, in that they would increase the flexibility of the remedies available to the courts. While the Supreme Court of Ahmed vs. His Majesty’s Treasury (No. 2) [2010] UKSC 5 recognized the court’s discretion to make conditional rescission orders, the court in that case declined to grant one on the grounds that it would be misleading and would not change the legal position since the relevant provisions examined were ultra vires and therefore inherently had no legal effect. Legislating for the use of suspended restraining orders would serve to clarify any ambiguity around their use and legal effect.

Prospective-Only Void Orders

Proposed new paragraph 29A(1)(b) to the Act provides that a rescission order may include a provision that limits or removes any retroactive effect that the rescission would otherwise have. This provision may be used independently or in conjunction with s29A(1)(a) to grant suspended rescission orders. The proposed amendments would remove any retroactive effect of the rescission order and would confer permanent validity on the impugned act and the actions taken under it, until the rescission order takes effect.

Critics have pointed out that, since they do not have retroactive effect, purely prospective rescission orders would not provide adequate relief to plaintiffs in judicial review proceedings harmed by the impugned act or decision, even after it was deemed illegal. As the Law Society has pointed out, this would overturn the fundamental principles of our justice system that a person aggrieved by the unlawful action of a public body should be able to seek redress through the courts. This could discourage applicants, which would have a chilling effect on justice.[2]

Tom Hickman QC noted that the proposed suspended and prospective-only nullification orders would empower the courts to override the will of Parliament by conferring validity and legality on acts which they found to be unlawful and against the will of Parliament. In the case of suspended orders, this would only be temporary, but for only prospective orders, the courts would permanently invalidate the invalidity of illegal decisions prior to the court’s decision.

Legal presumption in favor of stay and prospective rescission orders only

The Bill proposes to insert into section 29A(9) of the Act the requirement that conditional or only prospective rescission orders be made if it appears to the court that doing so would provide adequate relief, unless the court has a good reason not to.

This proposed legal presumption has been hotly contested on the grounds that it would limit the discretion of judges and could force courts to resort to these remedies in circumstances where they would not be appropriate.[3] Those concerns were played down by the government who pointed out that the clause, as drafted, “gives the courts the flexibility to tailor their remedies appropriately”.[4]

Eviction from Cart J.R.

Clause 2 of the bill proposes a restrictively worded exclusion clause with respect to so-called Cart JR, named after the case of R (Cart) v Superior Court [2012] 1 AC 663. This case established the jurisdiction of the court to judicially review decisions of the Upper Tribunal denying leave to appeal a decision of the First Tier Tribunal.

There has been some controversy over the justification for such an eviction, which was originally proposed by the IRAL on the basis that Cart JRs had a 0.22% success rate and therefore this avenue of legal challenge was a disproportionate use of court time and resources. These figures have been disputed and have since been revised. The government now claims that the success rate of Cart JRs is 3.4%, a figure which is again disputed by the Public Law Project who argue that the correct figure is in fact 5.7% and further point to the government’s impact assessment which estimates the savings of only £364,000 to £402,000 for the abolition of this jurisdiction.[5]

As we discussed in a previous blog, the use of exclusion clauses presents significant constitutional challenges regarding the rule of law, separation of powers, and access to justice. The proposed ousting in this context has been criticized on the grounds that removing a vital avenue of legal challenge to Upper Tribunal decisions could lead to injustice.

This eviction proposal can also be seen as an attempt to test the waters as to the effectiveness of eviction clauses more generally and, in the words of Robert Buckland speaking at the launch of the bill, to “provide a model for using these clauses”. The concern that this could pave the way for further exclusion clauses in the future was acknowledged by the Law Society in its presentation to Parliament on the bill, which provides:

“…it is important to warn that exclusion clauses have the effect of reducing legal liability and preventing those who have been harmed from being able to obtain a remedy. As such, exclusion clauses should only be used in exceptional circumstances, and Parliament should endeavor to avoid a proliferation of the use of such clauses.”[6]

Conclusion

As noted recently in Nick Wrightson’s letter to the Guardian, while the proposed changes to judicial review are relatively narrow and technical, concerns remain about the government’s motives for seeking to meddle with the court’s judicial review powers. So far, various amendments tabled by opposition MPs to remove the prospective-only nullification orders, statutory presumption and exclusion clause from the bill have been successively defeated at committee stage.[7] However, the bill still has a number of stages to go through before being signed into law, during which some of the most problematic elements could still be modified.