MPs and peers have called on the Government to drop proposals in the Judicial Review and Courts Bill which they said had the potential to deny effective remedies against decisions by public bodies.
The Joint Committee on Human Rights - which is drawn from both houses of Parliament - said in its report Legislative Scrutiny: Judicial Review and Courts Bill that judicial review was a crucial component of the rule of law, enabling public authorities to be held accountable for the lawfulness of their decisions.
Changes in the Bill would affect courts’ power to make quashing orders by introducing a power to delay these taking effect and another to prevent a quashing order affecting the lawfulness of things that have already happened.
The committee said any use of this latter power “could result in people who have already been affected by an unlawful measure, including the person bringing the judicial review claim, getting no remedy or relief”.
Worse, the Bill would not merely confer these new powers but would require them to be used in certain circumstances.
The committee urged the Government to remove this requirement as it would place an unnecessary limit on the courts’ freedom to decide on the appropriate remedy to unlawful government decisions.
It also said that if the courts considered whether to make a suspended or prospective-only quashing order they should be required to have regard for human rights, including the right to an effective remedy guaranteed by Article 13 of the European Convention on Human Rights.
Members also objected to changes to so-called ‘Cart’ judicial reviews - mainly used in immigration cases - which they said would effectively prevent claimants from challenging Upper Tribunal decisions to refuse permission to appeal.
This amounted to an ‘ouster clause’, that would remove an area of decision making from review by the courts, it said.
The committee said it was “concerned by suggestions from the Government that they would use a similar approach in other areas of legislation in the future.
“The joint committee finds that this could significantly undermine judicial review of public bodies and weaken a crucial mechanism for enforcing rights”.
Committee chair, Labour MP Harriet Harman, said: “Human rights are meaningless unless people can enforce them and those who breach rights are held to account.
“Judicial review is of fundamental importance in allowing someone who claims their rights have been breached by Government action to take the Government to court. Governments should welcome that accountability not seek to dilute it.”