Judicial review bill to let judges modify quashing orders
A new UK government bill intended to give judges more power in judicial review cases has been introduced at Westminster.
The legislation will allow 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 means that a judge can delay the point at which a government action will be overturned. This aims to improve the public policymaking process by, for example, allowing time for a department to consult on the best way to replace an administrative regime, rather than creating a rush to do it immediately.
- Limiting or removing the retrospective effect of quashing orders – meaning judges can determine the government’s action unlawful, without invalidating any prior actions. For example, if a judicial review judgment found that an employment regulation that gave workers healthcare was found unlawful, it would jeopardise their access to a particular form of healthcare under current law. The new laws mean that a judge can ensure that continuing access to that healthcare was lawful even though the regulation had been ruled unlawful.
The Cart judgment will be reversed 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.
Research has found that these claims – which are the most numerous judicial review cases – have a success rate of around three per cent compared to a 40-50 per cent success rate for all other cases.
The Lord Chancellor, Robert Buckland QC MP, said: “The government has pledged to ensure that the courts are not open to abuse and delay. Today we are delivering on that commitment.
“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.”
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 reversal.”