Judiciously Considered Mark II – Judicial Review Reforms Enacted

The Judicial Review and Courts Act 2022 (the JRCA 2022) received Royal Assent on 28 April 2022. The JRCA 2022 makes a number of changes to judicial review, namely the means by which the High Court of England and the Country of Wales oversees the actions of public bodies. (or bodies exercising functions of a public nature). We previewed the reforms in a 2021 blog post. In this post, we describe the final shape of the reforms and what the changes mean for public bodies and those (e.g. businesses) who interact with public bodies.

In summary, within the framework of JRCA 2022:

  • The Court shall have the power to provide for so-called suspended rescission orders;
  • The Court will have the power to grant prospective rescission orders only; and
  • The effect of R (Cart) v. Superior Court1 has been reversed.

We provide more details on these changes below.

Suspended cancellation orders

As a reminder, the annulment of an order is one of the main remedies available in matters of judicial review. It is granted after a full hearing in circumstances where the claimant has been successful.

JRCA 2022 provides a new form of discretionary relief – the suspended rescission order. This remedy will be open to the administrative court so that, in the context of a judicial review procedure, the court can issue an order of annulment which would essentially have a deferred effect. This would give the respondent public body time to rectify its (otherwise illegal) decision within a time limit specified by the court. If the public body did not take the required action within that time, the rescission order would formally come into effect, reversing the decision under appeal.

This appeal is likely to be welcomed by public bodies. Plaintiffs may also welcome this remedy – since it will ultimately provide the aggrieved plaintiff with a reversal of the contested decision. However, much will depend on the details, including, for example, the time given to a respondent public body to reverse what would otherwise be an unlawful decision.

Prospective-Only Void Orders

JRCA 2022 further provides a new form of prerogative relief – the prospective-only rescission order. This recourse will be open to the administrative tribunal so that, when such an order is issued, the contested decision would only be illegal from the date of the judgment of the tribunal.

Of all the measures adopted, this is the most controversial. To date, and under conventional constitutional analysis, the effect of an order to set aside is that the “set aside” decision is rendered invalid from the time it was made; the decision is taken for cancel ab initio (i.e. having no legal effect from its creation).

A purely prospective rescission order disrupts this approach and, in doing so, could have detrimental effects on plaintiffs in circumstances where they have successfully demonstrated that the respondent public body acted unlawfully. Not only can it be used in such a way that the contested act is not effectively “cancelled”; but, for example, this could in principle deprive a claimant of a claim for damages where the illegality relates to a violation of the claimant’s rights under the European Convention on Human Rights (ECHR) (the ECHR having been incorporated into domestic law under the Human Rights Act 1998).

Conversely, the new remedy offers the Administrative Tribunal greater flexibility in the way it rules on applications and is likely to benefit the public bodies where the order is issued. Everything will depend on how the Court decides to use its new powers and impose this remedy, which it can only do after having examined the list of mandatory factors set out in the Act.

Reverse Cart

Finally, JRCA 2022 reverses the effect of the UK Supreme Court’s judgment in R (at Cart’s request) v The Upper Tribunal [2011] UKSC 28. This will mean that decisions of the Upper Tribunal will no longer be subject to judicial review where that court has refused leave to appeal a decision of the First Tier Tribunal.

While some commentators have criticized this reform as inter alia restricting access to justice, it is likely to lighten the burden on the Administrative Court.

Proposed or final reforms

JRCA 2022 has been in the works for a long time. As we noted in our 2021 blog post, the then-bill stemmed from proposals – all aimed at reducing the alleged burden on public bodies – presented in the Conservative Party manifesto for the 2019 general election. Following the Conservative Party’s success in this election, the government set up an ‘Independent Administrative Law Review’ (IRAL) to examine the scope of these public and administrative law changes and the Court’s jurisdiction to review. When the IRAL reported, it suggested a number of practical, step-by-step changes. However, he was reluctant to endorse more sweeping changes in government. When the bill came out, some of those measures had been dropped.

There remains some consternation around JRCA 2022 as adopted. In particular, prospective rescission orders alone could potentially deprive plaintiffs (including companies in commercial judicial review litigation) of full relief even where such plaintiffs have established illegality on the part of the respondent. In this regard, much will depend on how the Court uses these new remedies. Criticisms have also been leveled on the basis that many of the more mundane practical reforms suggested by the IRAL to ensure efficiency gains have not been incorporated into law.