The Judicial Review and Courts Bill (“the Bill”), first announced in the Queen’s Speech in May to introduce reforms to judicial review, passed its first reading just before the recess summer of Parliament. It follows the government-commissioned Independent Administrative Law Review (IRAL) in 2020, which reviewed and consulted on the need for far-reaching judicial review reform.
The bill introduces only some of the IRAL’s recommendations and, to the relief of many, none of the more sweeping proposals being considered in the IRAL review.
The main elements of the bill (which relate to judicial review) introduce new variants of rescission orders. These are relatively limited changes to the judicial review process, but they will (somewhat paradoxically) increase judicial powers by providing new discretion to limit the consequences of ultra vires decisions and acts.
In this blog, we take a look at what the new remedies mean for scheduling judicial reviews.
New Variations to Void Orders
The setting aside of orders is one of the remedies available to judges when an application for judicial review is successful. They revoke the original action or decision on the grounds that it is invalid such that it never had legal effect.
They are the most common remedy applied by the courts in successful judicial planning reviews and lead to the reversal of planning decisions (usually a building permit). However, courts also sometimes refuse relief, even in successful cases if the legal errors are technical, where it is highly likely that the outcome for the plaintiff would not have been materially different had the error not occurred. not produced.1.
The bill introduces new variants to rescission orders to give courts the ability to offer more flexible remedies to give public authorities time to rectify errors identified through suspended rescission orders, or removing or limiting any retroactive effect of cancellation.2 through prospective rescission orders.
There is a wait3 that prospective rescission orders will not be frequently enforced, but we expect suspended rescission orders to be enforceable in successful judicial planning reviews in certain situations.
Cancellation orders suspended
A suspended rescission order could be suspended for any length of time under the bill, subject to the satisfaction of conditions to be determined by the court. For the duration of the stay, the “impugned” decision would be considered valid and if the conditions are not met within the time limit and the errors not rectified, the rescission order would become effective. In the planning context, this means that judges would have the discretion to suspend the cancellation of a planning permit (or other decision), allowing a planning permit to remain in effect for that legal errors are rectified by the planning authority.
When deciding whether or not to use the new remedial powers, courts must consider a prescribed non-exhaustive list of factors (which include the nature of the default and the interests of those who relied on the decision and have benefited). However, the bill also introduces a general presumption of use of these new remedies in certain circumstances if they provide “adequate relief”, unless there is good reason not to.
Implication for the planning of judicial reviews
Although the new remedies do not specifically target the planning process, but rather aim to provide more flexibility in cases that raise constitutional issues or where overturning a decision would present significant risks to national security or the public interest, it is likely that there will be opportunities for their use in planning cases, which are often in the public interest.
Indeed, when introduced in the Queen’s Speech in May, one of the key benefits of the bill highlighted was that it would help ensure that major infrastructure projects are not delayed because an impact assessment had not been properly carried out.
Suspended rescission orders could potentially be used to allow errors that are not merely technical to be remedied without the original authorization being rescinded. For example to allow the retrospective realization of an impact study. If these powers were already available, this remedy might have been applied by the court in the recent successful judicial review of the development consent order (DCO) for the Stonehenge bypass.4. As it stood, the DCO was canceled on the grounds that heritage impacts and alternative routes had not been given sufficient consideration by the Secretary of State. However, a suspended cancellation order may have avoided the cancellation of this DCO and the need (and expense) to start the entire DCO review process again.
Courts will need to be careful in their application of suspended rescission orders in planning cases and careful in their drafting of conditions to ensure that planning applications are fully reconsidered by the appropriate planning authority if the required error, when corrected, generates new considerations or evidence. Further guidance in this regard would be helpful.
The goal of a plaintiff in a judicial planning review is usually the cancellation of a building permit. However, potential claimants may fear that these new remedies introduce the risk that, even if they succeed, they will walk away “empty-handed”. This risk will need to be considered by potential claimants when deciding whether to bring an application for judicial review.
In practice, the courts will have to justify their use of these new remedies. Evidence or clear proposals from respondents as to how the error of law could be corrected and within what time frame should be presented to the court after judgment. Courts will want to avoid illegal acts being held in place for an uncertain period without any remedy. If it’s a risk, a suspended restraining order is unlikely to offer “adequate relief” and be granted.
If the bill passes, it does not necessarily mean that the new remedies will be consistently applied or used in controversial or unjustified ways. The courts have a widely recognized history of restraint in the use of their powers and we expect this to continue. However, these new measures will open the door to the possibility of their use in judicial reviews of planning and in a way that could worry potential claimants.
The second reading of the bill is scheduled for September.
1. Introduced via an amendment to the Superior Courts Act 1981 by the Criminal Justice and Courts Act 2015
2. Section 1 of the Bill would introduce a new Section 29A of the Superior Courts Act 1981
3. Statement in the Explanatory Notes to the Bill
4. R (on request of) Save Stonehenge World Heritage Site Ltd v Secretary of State for Transport  EWHC 2161