New Bill introduces changes to judicial review

The Judicial Review and Courts Bill, introduced to parliament on 21st July, is set to equip judges with the tools to give more tailored solutions in judicial review cases. It will also create a better balance between the rights of citizens to challenge executive decisions through judicial review and the need for effective government.

The changes come following a thorough examination of trends in judicial review undertaken by the expert Independent Review of Administrative Law and a public consultation on a range of proposals.

Lord Chancellor, Robert Buckland QC MP, has commented that:

“the Government has pledged to ensure that the courts are not open to abuse and delay. Today we are delivering on that commitment”.

The new measures will allow the courts to delay the time it takes for orders to come into effect, allowing parties more time to prepare. They will also reduce the impact on third parties who have relied on a power that the courts deem unlawful.

This legislation will empower judges to modify quashing orders by introducing two changes, to be used at the discretion of individual judges:

• Suspending the effects of a quashing order – this will improve the public policy making process by allowing judges to delay the point at which a Government action will be overturned.
• Limiting or removing the retrospective effect of quashing orders – this will allow judges to determine the Government’s action unlawful, without invalidating any prior actions.

“We are giving judges the powers they need to ensure the Government is held to account, while tackling those who seek to frustrate the court process,”

said Buckland of the new measures.

“Cart” judgments will also be removed as part of this Bill to prevent parties who have already been refused permission to appeal by both the First-tier and Upper Tribunal from trying a third time through a judicial review in the High Court. This will prevent unnecessary delays in immigration and asylum cases and introduces a range of improvements to court processes.

Research found that these claims, which are the most common judicial review cases, have a success rate of only around 3% compared to a 40-50% success rate for all other cases, and are estimated to cost the taxpayer over £300,000 per year.

Richard Ekins, Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government in the University of Oxford, said:

“The Judicial Review and Courts Bill is a welcome first step in the wider project of restoring the UK’s traditional political constitution and vindicating the rule of law.”

“It has always been open to Parliament to reverse judgments of our highest courts and the Bill’s measures are a carefully considered, limited response to two important Supreme Court judgments. The Bill’s changes to the remedial discretion of the courts promise to help them avoid needless uncertainty or disruption, while still recognising and quashing unlawful action. In ruling out most grounds of judicial review in relation to decisions of the Upper Tribunal, the Bill will restore the Upper Tribunal’s jurisdiction, protecting it from unnecessary litigation and helping to vindicate Parliament’s authority to determine the scope and reach of judicial review.”

“This Bill is thus a narrowly framed proposal, which should be the beginning but not the end of the reform process; in evaluating its merits, Parliament may wish to consider whether some other Supreme Court judgments also warrant.