Bill makes subtle changes to judicial review in England and Wales

Judicial review is essentially the means by which the courts audit the legality of decision-making by public bodies in the UK. In March 2021 the government launched a consultation on its proposals to reform judicial review. The Bill is the product of the government’s response to the feedback received in the consultation process, and the draft legislation would, if enacted, make changes to the remedies that courts may grant and limit judicial review as an appeal route from tribunals. The Civil Procedure Rules Committee is expected to make other procedural changes without the need for primary legislation.

Changes on remedies

Clause 1 of the Bill gives a court a discretion in how it makes a quashing order, which is made in a case to strike down a decision or instrument that it has found to be unlawful. Under the proposals, the court may suspend the quashing order, so that the public body is first given the opportunity to correct any failure that the court has identified. The court would also have a discretion to limit the retrospective effects of the quashing order, so that things done before the quashing order was granted remain lawful.

The clause purports to create a presumption that a court must exercise these discretions when making a quashing order. However, the presumption may be overturned if the court is satisfied there is ‘good reason’. This is not a high bar for a claimant to overcome. The net result in practice is a broader discretion for a court to grant the remedy most appropriate to the case before it, which must be a good thing.

The changes will apply in England Wales, but not in the separate judicial review jurisdictions in Scotland and Northern Ireland. Whilst there had been some concerns that reforms increasing divergence between the jurisdictions might increase the incentives for forum-shopping, the limited practical impact of the changes suggests this is unlikely.

Practical impact of the changes

Judicial reviews may deal with an enormous range of situations, but one example of the type of case where the proposed new remedies may be relevant is where an individual challenges an instrument of wide application to thousands or millions of others. If cases such as these are brought in future, under the proposed new Bill, the court would have powers of discretion to grant a full remedy to the claimant, but limit the retrospective effects of the judgment for any other individual who had not issued a claim before the date of the judgment. In this way, the limited order would require the introduction of a new lawful scheme, but limit taxpayers’ liability for backdated claims.

Such a decision would require the court to form a view on social policy considerations, and it would be interesting to see if courts feel that such issues are best decided instead by the government of the day and subject to parliamentary approval.

Wider implications

The discretion to suspend quashing orders could be particularly relevant where claimants succeed with a judicial review on procedural grounds, such as a failure to comply with the public sector equality duty (PSED). The PSED requires equality considerations to be taken into account before the relevant decision is taken, and the last decade has seen a huge growth in judicial review litigation in which policy has been challenged for its alleged non-compliance with the PSED. The ability to suspend quashing orders might encourage courts to take a stricter line on public bodies fulfilling a procedural duty, while giving them a second chance to comply and preserve the substantive policy.

Another interesting aspect will be whether the Bill prompts legislative change in other areas.  For example, public procurements may be subject to judicial review claims where the relevant cause of action does not exist under applicable statutory instruments such as the Public Contracts Regulations 2015. However, those Regulations permit a quashing order but not a suspended quashing order.  A court faced with a procurement claim brought as a judicial review may therefore have greater latitude than a court faced with a procurement claim brought under the Public Contracts Regulations.

Other reforms

Clause 2 of the Bill removes the Administrative Court’s 'Cart' jurisdiction for judicial reviews – these are essentially appeals from certain decisions of the Upper Tribunal. The main impact of this clause will be on immigration cases starting in the tribunal system. The government has abandoned more radical plans to limit the court’s jurisdiction in multiple other contexts.

Other procedural changes for judicial review which the government consulted on concerned deadlines for applications, multi-track timetables and a claimant’s right to reply. These were largely welcomed in principle, though further detail is needed on some. As they do not require primary legislation they are not included in the Bill, and it is expected that the Civil Procedure Committee will be invited to develop and implement them in the coming months.