The Judicial Review and Courts Act 2022 brings change

Out-Law Analysis | 27 May 2022 | 1:25 pm | 3 min. read

The Judicial Review and Courts Act 2022 has now been passed, introducing reforms to the conduct of judicial reviews in England and Wales. It will broaden the menu of remedies that the courts may choose to grant and limit the use of judicial review as an appeal route from tribunals.

Judicial review is essentially the means by which the courts audit the legality of decision-making by public bodies in the UK. The reforms in the Act followed a 2021 government consultation on wider proposals to reform judicial review, a number of which were later dropped. Other changes that featured in the Bill (96-page / 1.12MB PDF) when it was first introduced into parliament were also removed before the legislation took its final form. Alongside the Act, the Civil Procedure Rules Committee is expected to make other procedural changes stemming from the 2021 consultation.

Changes on remedies

Section 1 of the Act 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.

The courts now have the option of suspending the quashing order in some cases, so that the public body is first given the opportunity to correct any failure that the court has identified. The court also has a discretion to limit the retrospective effects of the quashing order, so that things done by the public body before the quashing order was granted remain lawful.

Fletcher Michael_November 2019

Michael Fletcher

Partner

The courts now have the option of suspending the quashing order in some cases, so that the public body is first given the opportunity to correct any failure that the court has identified.

As with other remedies in judicial review, the choice of order is at the discretion of the judge hearing the case, taking account of each case’s circumstances.

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 or scheme of wide application to thousands or millions of others.

If cases such as these are brought in future, under the Act, 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.

David Thorneloe

David Thorneloe

Legal Director

Given the impact on claimants left to face the effects of a public body’s unlawful actions, the courts are only likely to grant these new orders in exceptional cases where they do not impact negatively on the claimant, or the wider public interest is so significant as to outweigh that negative impact.

Where granted, these new forms of quashing order will offer helpful flexibility to government departments and other public bodies in how they can address the consequences of actions found to be unlawful. However, for claimants, they raise the prospect of winning a judicial review but with only a limited remedy to show for it. Given the impact on claimants left to face the effects of a public body’s unlawful actions, the courts are only likely to grant these new orders in exceptional cases where they do not impact negatively on the claimant, or the wider public interest is so significant as to outweigh that negative impact.

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).

David Thorneloe

David Thorneloe

Legal Director

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.

The PSED requires equality considerations to be taken into account before the relevant decision is taken. In the last decade there has been 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 Act 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. 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

Section 2 of the Act 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 provision will be on immigration cases starting in the tribunal system. This new limit on the court’s jurisdiction is likely to be the subject of a legal challenge after concerns were raised that the provisions restrict access to justice. As a result, it remains to be seen if it will have its intended effect.

Other procedural changes for judicial review which the government consulted on in 2021 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. It is expected that the Civil Procedure Rules Committee will be considering them further in the year ahead.