Judicial Review Reform – waiting for the sting

22 July 2021

Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
 

Key reforms

  • Quashing orders may be suspended until a future date or limit any retrospective effect of the quashing;
  • Suspended quashing orders may be made subject to other conditions;
  • Impugned acts will be upheld until the quashing takes effect;
  • In deciding to suspend or limit the effect of the quashing order, the court must consider a number of factors, stipulated by legislation, including “the detriment to good administration” and “the interests and expectations” of claimants and interested parties; 
  • If a court considers that a suspended or non-retrospective quashing order provides adequate redress, the court must make such an order unless there is good reason not to;
  • The statutory exclusion of the review of Upper Tribunal permission-to-appeal decisions.

The reforms steer clear of mandatory or presumptive suspended and non-retrospective quashing orders, which risked removing an important deterrent. The impact of the reforms (if passed into law) will therefore depend on the exercise of judicial discretion and litigants on both sides will have to “wait and see.” In future litigation, it is expected that both defendants and claimants will need to carefully analyse the need for and impact of these new orders: claimants will no doubt seek to develop the line of reasoning in Ahmed (No 2) [2010] UKSC 5 where the Supreme Court ruled that it could not properly order a suspended quashing order because a court “should not lend itself to a procedure designed to obfuscate the effect of its judgment.”

The decision to exclude the review of Upper Tribunal permission-to-appeal decisions is potentially more ominous. The clear signals from Robert Buckland is that “more is yet to come” with many predicting that ouster clauses may become more widespread – with the new Bill setting the framework for the removal of judicial review in future legislation.

Further Information

Kingsley Napley LLP regularly represents parties in judicial review challenges. Our lawyers also blog regularly about public law matters. Follow our Public Law blog for the latest commentary.

Should you have any questions about the issues covered in this blog, please contact Sophie Kemp or any member of our Public Law team.

 

About the Author

Sophie Kemp is an experienced public lawyer, advising on major public inquiriesjudicial review, and modern slavery and human rights.  Sophie acts for individuals, charities, companies and regulatory bodies in judicial review litigation. She has considerable investigative and public inquiry experience representing individuals, institutions, charities, public figures and senior professionals in major public inquiries, inquests, IOPC investigations, and before Select Committees. 

 

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