Parliamentary Briefing: Judicial Review and Courts Bill – House of Lords Second Reading

The Judicial Review and Courts Bill will make significant changes to judicial review processes, as well as other provisions relating to the courts.

The bill had its second reading in the House of Lords on Monday 7 February.

Our positioning

Our main concerns relate to the proposals in the first part of the bill, namely the reform of judicial review.

The bill seeks to introduce new powers for the courts in judicial review cases to suspend an order to set aside.

This would mean that a rescission order would not come into effect until a specified later date; essentially a purely prospective rescission order.

These new powers could also limit or remove the retroactive effect of a rescission order, so that it would not apply to actions taken before the rescission order was issued.

The bill also provides a presumption in favor of this type of rescission order, which requires judges to grant them if certain conditions are met.

Main recommendations

We strongly oppose both the introduction of only prospective avoidance orders and the inclusion of the statutory presumption.

These proposals will:

  • weaken judicial discretion
  • denying a remedy to those affected by unlawful acts
  • have a deterrent effect on judicial review

We also oppose a proposal to set aside the judgment by R (Cart) v Superior Court.

The result would be to remove the ability for individuals to seek judicial review of a decision by the Upper Tribunal to deny leave to appeal.

The second part of the bill includes a number of court provisions.

We recommend that the government:

  • limits the ability to allow written or online pleading indications only to represented parties
  • retains a defendant’s right to choose a jury trial until a summary trial begins
  • consult widely before moving forward with plans to abolish local justice areas