You can download this Explainer as a PDF here.

On 21 July 2021, the UK Government introduced the Judicial Review and Courts Bill to the House of Commons. You can read the full Bill here and the Explanatory Notes here.

The Bill includes a number of planned changes to the way some courts work in the UK. This Explainer will focus on the planned changes to judicial review. However, a number of other concerns with the Bill have been raised. You can read about other concerns, including concerns around changes to court procedures here.  

If this Bill remains unchanged and becomes a law, it will make some changes to the way judicial review works in the UK.

 

What is Judicial Review?  

This Bill could impact the way judicial review currently works in the UK. You can read BIHR’s Explainer about judicial review which covers: 

  • Who can bring a judicial review case?
  • What are the time limits for bringing a judicial review case?
  • What happens at the end of a judicial review case?
  • What are the grounds for judicial review?
  • When can judicial review be used?

 

Why has the Judicial Review Bill been introduced?

The Conservative party won the General Election in 2019, which means they are now the government. In their election manifesto, the Conservative party made a commitment that if they were elected they would look at “the broader aspects of our constitution”, including judicial review and the Human Rights Act.

 In 2020, a Panel was set up to conduct an Independent Review of Administrative Law (IRAL) looking at how judicial review is working in the UK. The IRAL was open for consultation responses between September and October 2020. You can read more about our work in this area, and the evidence that we submitted to this Review here.

The IRAL Panel submitted their report to the government Ministers responsible for these issues in January 2021.. These are Robert Buckland MP, the Lord Chancellor (who is the chief Minister responsible for justice issues) and Michael Gove MP (who is a Minister with responsibility for advising the Prime Minister on policy issues. His official title is the Chancellor of the Duchy). In March 2021, the government published IRAL’s report.  The IRAL has now been disbanded.

 

What did the IRAL Report say?

You can read the report in full here. or find a short summary below.

 “The Panel consider that the independence of our judiciary and the high reputation in which it is held internationally should cause the government to think long and hard before seeking to curtail its powers.

It is inevitable that the relationship between the judiciary, the executive and Parliament will from time to time give rise to tensions. Recent decisions provide a clear illustration of this. On one view, a degree of conflict shows that the checks and balances in our constitution are working well.

However, the government is undoubtedly entitled to legislate in relation to judicial review and may well be justified in doing so in certain circumstances. None of the judges who provided submissions to us called this into question. Although there could be said to be an element of conventional law reform about some of our proposals, any decision to legislate more widely will essentially be a political one.” (page.131)

 

What happened next?

Following the report from the IRAL, the UK Government announced its own consultation on the reform of judicial review. This consultation ran from 18 March to 29 April 2021 and a consultation response was published by the Government in July 2021. You can read the Government’s Consultation Response in full here.  

In their consultation response, the UK Government said that:

“After carefully considering all responses, the government intends to legislate and it is introducing essential reforms that will draw the line under some complex legal problems and strengthen the integrity of Judicial Review for its intended purpose: to hold the government to account, apply the intent of Parliament, and protect individuals.”

The resulting Judicial Review and Courts Bill was introduced to the House of Commons on 21 July 2021.

 

What changes are in the Judicial Review and Courts Bill and what are the causes for concern?

The Judicial Review and Courts Bill includes a number of changes to the way judicial review currently works. These changes will only happen (in the way they are currently set out) if the Bill passes through the House of Commons and the House of Lords, without any changes being made and then becomes a law (Act of Parliament).

 

Quashing Orders

At the end of a judicial review case, if the person’s case has been successful, the judge will usually “quash” or nullify the original decision of a public authority. This is called a “quashing order” and means that the decision needs to be made again.

The new Judicial Review and Courts Bill plans to change the way this can be applied by judges giving them the possibility to:

  • make an order saying the quashing will not take effect until a date specified in the order

and

  • make an order to remove or limit any retrospective effect of the quashing order. This means that the decision will only be found to be unlawful after the order is made, and the quashing order will not apply to people impacted by the decision if this happened before the judicial review case.

 

Concerns about the changes to Quashing Orders

Giving these new powers to judges, to suspend the effect of a quashing order to a later date could mean that people continue to be negatively impacted by a decision, even after a court has found it to be unlawful.

Giving judges the possibility to limit the retrospective effect of a quashing order, means that the person taking the case may not actually see any real-life impact for them. The Law Society of England and Wales has said:

“‘We oppose prospective-only remedies which leave the door open for righting a future wrong but do nothing for injustices from the past. Removing or limiting the retrospective effect of an order would mean that nobody who has been a victim of an unlawful state action – not even the person who brought the challenge - would benefit from a ruling that the government had behaved unlawfully.

"This would have a chilling effect on justice by deterring people from bringing legal challenges, in the knowledge that they might gain no redress, and might also mean people would be less likely to get legal aid to bring cases where a prospective-only remedy was the likely outcome."

 Judicial reviews can take up a lot of time and resources and can be very expensive. BIHR shares similar concerns, would people continue to challenge unlawful decisions of public authorities if they will not see any change in their own situation?

 

Cart Reviews

The Bill also plans to reverse the Cart Judgement. The Supreme Court Cart Judgement in 2001, means that people who have been refused permission to appeal by both the First-tier and Upper Tribunals can use judicial review in the High Court.

The Bill says Cart Judicial Reviews will be removed using an ouster clause. Ouster clauses are provisions in legislation that limit when the top UK Courts can use a particular power. The UK Government says that “while no previous ouster clause has been fully upheld in the courts, the Government is confident that this measure will be sustained.”

The UK Government says that:

 “This will free up valuable resources in the High Court and uphold the jurisdictional status of the Upper Tribunal.”

 

Concerns over the reversal of the Cart Judgement and the use of Ouster Clauses

According to some academics, lawyers and campaigners the original proposal to scrap the Cart route was based on a misunderstanding. The Free Movement Blog says:

“The report of the Independent Review of Administrative Law, published in March 2021, claimed that just 0.22% of Cart cases were successful. Experts promptly rubbished that figure, and the Ministry of Justice has now updated that to more like 3%. That figure also looks dodgy.”

 The basis 3% figure is not referenced in the UK Government’s press release about the Bill.

Cart judicial review cases can often be about asylum and immigration and can deal with very important human rights issues, such as will a person be deported to a place where they say they are at risk of torture or inhuman and degrading treatment. You can read some examples of these cases here.

The use of ouster clauses has also raised concerns. The Law Society of England and Wales has said:

"The MoJ suggests the bill may set a precedent for government to give itself the power to remove certain types of cases from the scope of judicial review which would effectively spawn a new breed of ouster clause. There are rare, exceptional circumstances when it is appropriate for the state to circumvent the courts, and only with strong justification. Parliament will need to think very carefully about the potential impact of any such proposals on the rule of law.”

  

Which Human Rights Are Involved?

 Judicial review is a very important process for protecting our human rights here in the UK. For more information about your human rights and how they are protected please visit our Human Rights Act Hub.

One of the reasons why a judge can find a decision of a public authority unlawful in a judicial review case is because the decision is in breach of Human Rights Act. If the judge finds that the decision breaches someone’s human rights it will be like the decision was never made and the decision-making process will have to happen again.

Judicial review, or the threat of judicial review, helps give our legally protected human rights “teeth”, it is part of what makes them enforceable. Judicial review means that people who feel like a decision made by a public authority has breached their human rights, can challenge this. Really importantly, the potential that a person can bring a judicial review case encourages public authorities to use good decision-making processes in the first place. This means the value of judicial review is not only about the legal cases that are taken but is also about preventing (or changing) bad decisions to avoid judicial review. This is why changes allowing judges to limit the retrospective effect of judicial review judgements raises such cause for concern.

Ultimately this is an important way of protecting and respecting the human rights of the people the decision will affect, and all of us, by getting the processes as right as possible in the first place.

You can read examples of judicial review cases that have protected our rights on issues such as the Bedroom Tax, male violence against women and securing changes to clinical care guidelines to protect the rights of Autistic people, people with learning disabilities, and/or mental health issues from discrimination here.

 

What happens now?

The first reading of the Bill took place on 21 July. The first reading is the first stage of a Bill's passage through the House of Commons, this takes place without debate.

The next stage will be the second reading in the House of Commons. At this stage MPs can debate the main principles of the Bill. It should take place within the next 2 weeks, so should take place by around 5 August 2021.

Before it becomes law, the Bill has to pass through both the House of Commons and House of Lords. At different stages MPs and Lords will debate the Bill and will have the possibility to suggest changes to the Bill, which will be voted on. The Bill will only become law if a majority of MPs vote in favour of it.

You can check what stage the Bill is at here

 

Where can I find more information?

 

  

PLEASE NOTE: BIHR Explainers are provided for information purposes. These resources do not constitute legal advice. The law may have changed from the date of writing.