The Judicial Review and Courts Bill was introduced to the House on 21 July 2021. The Bill follows the Independent Review of Administrative Law (IRAL), which reported in January 2021, and the Government’s subsequent consultation on Judicial Review Reform earlier this year, and seeks to reform judicial review.
The first substantive reform, and one of the recommendations of the IRAL Panel, would grant the court a new discretionary power to suspend or alter the effects of quashing orders. This discretion could delay a quashing order coming into effect in certain circumstances, giving defendants time to make transitional arrangements (for example), or remove or limit the retrospective effect of a quashing. The power is accompanied by a non-exhaustive list of factors for courts to consider in deciding whether to exercise their discretion. The Bill also proposes a general presumption in favour of this new power being used by the courts where it offers adequate redress and there is no good reason not to do so.
The second reform relates to Cart judicial reviews. The Bill contains an ouster clause which would make decisions of the Upper Tribunal to refuse permission (or leave) to appeal from a decision of the First-tier Tribunal final and not open to review by any other court. There would be limited exceptions – for example, where the decision concerned gives rise to any question as to whether: the application to appeal was valid; the Upper Tribunal has acted in bad faith or in fundamental breach of the principles of natural justice; or the Upper Tribunal was properly constituted.
The Bill is unlikely to have any significant impact on the judicial review of administrative law decisions by local authorities, save for in relation to suspended quashing orders. Whilst such a remedy may provide some ‘breathing room’ and be welcomed, it should be noted that their use is unlikely to be appropriate where public authorities act beyond their powers (or ultra vires).
Local authorities should also note that whilst the Bill has been widely reported on as pertaining to Cart judicial reviews in the Immigration and Asylum Chamber (where the majority of such challenges are brought), the proposed ouster clause would not be confined to immigration and asylum cases and would, therefore affect Cart judicial reviews in all four chambers of the Upper Tribunal. That includes appeals from the Health, Education and Social Care Chamber or First-Tier Tribunal (Property Chamber), for example. However, as the Government point out in their own judicial review fact sheet published with the Bill, no previous ouster clause has been fully upheld in the courts.
The Judicial Review and Courts Bill will go for second reading after Parliament’s summer recess.