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

As we highlighted in our earlier blog following the Bill’s announcement, the proposed reforms are, at first sight, milder than had been feared. Nevertheless, the Bill proposes to make significant amendments to the remedies available in judicial review proceedings and to also limit the court’s jurisdiction.

We consider these proposed amendments below.

Suspended quashing orders

Clause 1 of the Bill proposes to insert a new section 29A into the Senior Courts Act 1981 (‘the Act’). The effect of the new section 29A(1)(a) would be to afford the court the power to make a suspended quashing order which would only come into effect at a pre-determined point in the future, whereupon the unlawful defect which is subject to the order would become null and void and have no legal effect. Until that time the unlawful defect to be quashed by the order would be upheld and treated as valid.

The introduction of suspended quashing orders was recommended by the IRAL in order to increase the flexibility of remedies available to the court in judicial review proceedings. The explanatory notes to the Bill repeat the IRAL panel’s view that suspended quashing orders may be useful in “circumstances where a case raised significant constitutional questions, or where quashing a decision would pose significant risks to national security or the public interest” because they would allow Parliament time to amend or clarify the law before the quashing order takes effect, and also “in circumstances where a suspended quashing order would allow the defect to be corrected”.[1]

Most commentators have been broadly supportive of the introduction of suspended quashing orders in principle, in that they would increase the flexibility of the remedies available to the courts. Whilst the Supreme Court in Ahmed v HM Treasury (No 2) [2010] UKSC 5 recognised the court’s discretionary power to issue suspended quashing orders, the court in that case declined to grant one on the basis that to do so would be misleading and not alter the legal position since the relevant provisions under scrutiny were ultra vires and therefore inherently had no legal effect. Legislating for the use of suspended quashing orders would serve to clarify any ambiguity around their usage and legal effect.

Prospective-only quashing orders

The proposed new s.29A(1)(b) to the Act provides that a quashing order may include a provision which limits or removes any retrospective effect that quashing would otherwise have. This provision may be used independently or cumulatively with provision s29A(1)(a) for granting suspended quashing orders. The proposed amendments would remove any retrospective effect of the quashing order and confer permanent validity on the impugned act, and actions taken under it, up until the quashing order takes effect.

Critics have highlighted that, since they have no retrospective effect, prospective-only quashing orders would fail to provide adequate redress to claimants in judicial review proceedings adversely affected by the impugned act or decision, even after it has been found to be unlawful. As noted by the Law Society, this would invert the basic principles of our justice system that someone harmed by the unlawful action of a public body should be able to secure a remedy through the courts. This could disincentivise claimants, resulting in a chilling effect on justice.[2]

Tom Hickman QC has noted that proposals for suspended and prospective-only quashing orders would empower the courts to effectively override the will of Parliament by conferring validity and lawfulness on acts which they have deemed to be unlawful and against the will of Parliament. In the case of suspended orders, this would only be temporary, but for prospective-only orders the courts would permanently cancel the invalidity of unlawful decisions which pre-date the court’s ruling.

Statutory presumption in favour of suspended and prospective-only quashing orders

The Bill proposes to insert at s.29A(9) of the Act the requirement that suspended or prospective-only quashing orders must be made if it appears to the court that doing so would offer adequate redress, unless the court sees good reason not to do so.

This proposed statutory presumption has been strongly opposed on the basis that it would limit judicial discretion and could force the courts into using these remedies in circumstances where they would not be appropriate.[3] These concerns have been down played by the government which has emphasised that the clause, as drafted, “gives the courts the necessary flexibility to tailor its remedies appropriately.”[4]

Ouster of Cart JR

Clause 2 of the Bill proposes a narrowly drafted ouster clause in respect of so-called Cart JRs, named after the case of R (Cart) v Upper Tribunal [2012] 1 AC 663. This case established the court’s jurisdiction to judicially review decisions of the Upper Tribunal which refuse permission to appeal against a decision of the First Tier Tribunal.

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

As we discussed in an earlier blog, the use of ouster clauses presents significant constitutional challenges concerning the rule of law, separation of powers and access to justice. The ouster proposed in this context has been criticised on the basis that removing a vital route of challenge on points of law to decisions of the Upper Tribunal could lead to injustices.

This proposed ouster may also be seen as an attempt to test the water as to the efficacy of ouster clauses more generally and, in the words of Robert Buckland speaking at the Bill’s launch, to “provide a model for how such clauses should be used”. The concern that this could pave the way for further ouster clauses in the future has been recognised by the Law Society in their submission to Parliament on the Bill, which provides:

“…it is important to caution that ouster clauses have the effect of reducing legal accountability and preventing individuals who have been adversely affected from being able to secure a remedy. As such, ouster clauses should only be used in exceptional circumstances, and Parliament should seek to avoid a proliferation in the use of such clauses.”[6]

Conclusion

As recently noted in Nick Wrightson’s letter to the Guardian, although the proposed changes to judicial review are relatively narrow and technical, there remain concerns about the government’s motivations for seeking to meddle with the court’s powers of judicial oversight. So far, various amendments tabled by opposition MPs to remove prospective-only quashing orders, the statutory presumption and the ouster clause from the Bill have been successively voted down during the committee stage.[7] However, the Bill still has a number of stages to proceed through before enactment, during which time we may yet see some of the more problematic elements subject to amendment.