Constitutional All Change? The Judicial Review and Courts Act, the Brexit Freedoms Bill and a new Bill of Rights

Recent weeks have seen a number of notable developments concerning new or proposed legislation which could have a wide-ranging impact on aspects of public and administrative law. In particular:

• The Judicial Review and Courts Act 2022 has recently received Royal Assent and introduces, amongst other things, changes to remedies in judicial review.
• The Queen's Speech, delivered on 11 May 2022, revealed the Government's legislative agenda for the Parliamentary year ahead, including the introduction of a Bill of Rights and a Brexit Freedoms Bill which could impact claims based on human rights and retained EU law respectively, going forward.

The Judicial Review and Courts Act 2022 (the "JRCA")

On 28 April 2022, the JRCA received Royal Assent (though the relevant provisions discussed below have not yet come into force). The JRCA will introduce a number of changes to judicial review, which we detail further below. You can also listen to our views on the draft bill here.

(i) Quashing orders

Section 1 of the JRCA amends the Senior Courts Act 1981 to provide for two new types of quashing order, which can be made with or without conditions:

• A suspended quashing order ("SQO") which may provide that quashing does not take effect until a date specified in the order. The impugned decision or act will be valid until that date. The purpose of having a period of suspension would be to retain some certainty in a period where the original decision is valid, whilst allowing the public body time to re-evaluate its decision before the date of suspension.
• A prospective quashing order ("PQO") which may remove or limit any retrospective effect of the quashing. The effect of a PQO would be that only future acts or decisions would be affected.

In deciding whether to make an SQO or PQO, the court must take into account factors such as:

• The nature and circumstances of the relevant defect;
• Any resulting detriment to good administration;
• The interests or expectations of persons who would benefit from the quashing;
• The interests or expectations of persons who have relied on the impugned act; and
• Any other matter that appears relevant to the court.

Notably, the Government accepted the House of Lords' proposal to remove the presumption that either an SQO or PQO should be granted where this offered adequate redress, unless there was a good reason not to do so. We welcome this amendment as it gives the courts greater discretion as to the use of these new remedies.

(ii) Exclusion of review of an Upper Tribunal decision to refuse permission to appeal a First-tier Tribunal decision.

Section 2 of the JRCA 2022 amends the Tribunals, Courts and Enforcement Act 2007 by providing that where the Upper Tribunal refuses permission to appeal a decision of the First-tier Tribunal, that decision is described as "final and not liable to be questioned or set aside in any other court" (subject to certain limited exceptions). This is a legislative attempt to ensure that such a decision should not be amenable to judicial review. The purpose of this was to partially reverse the decision in R (Cart) v Upper Tribunal [2011] UKSC 28.

The Queen's Speech

The Queen's Speech, along with its accompanying Background Briefing Notes, provided some detail on legislative developments which may have an effect on the nature and/or scope of public law claims going forward.

(i) A new Bill of Rights

The Government announced its intention to introduce a Bill of Rights which is likely to impact the approach to human rights claims in the UK going forward. This announcement is a further step pursuant to the Government's intention to "restore the balance of power between the legislature and the courts" through the proposed Bill of Rights.

According the Background Briefing Notes, the main elements of the Bill are:

• "Establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.
• Ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose ‘positive obligations’ on our public services without proper democratic oversight by restricting the scope for judicial legislation.
• Guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant.
• Recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award."

As outlined in our previous blog post here, this development was foreshadowed in the Government's consultation to overhaul the existing human rights regime in the UK by replacing the Human Rights Act 1998 with a new Bill of Rights (the "HRA Consultation"). HSF's views on the HRA Consultation were discussed here and in March we published HSF's response to the consultation.

Proposals envisaged in the HRA Consultation included providing guidance to the courts on how to apply the principle of proportionality and requiring a 'permission stage' for human rights claims in order to 'weed out frivolous or unmeritorious claims'. However, the extent to which the specific proposals in the HRA Consultation will be carried forward in the draft wording of the Bill of Rights remains to be seen. It is therefore unclear what precise impact any new Bill of Rights will have on the scope of and approach to human rights claims, but it is possible that the impact could be significant.

(ii) The Brexit Freedoms Bill

Following the UK's departure from the EU, the Government has also announced an intention to introduce a Brexit Freedoms Bill. This has the potential to enable further divergence from EU law going forward. The stated purpose of the Bill is to "end the supremacy of European law and seize the benefits of Brexit". The main elements of the Bill are stated to be:

• "Creating new powers to strengthen the ability to amend, repeal or replace the large amounts of retained EU law by reducing the need to always use primary legislation to do so.
• Removing the supremacy of retained EU law as it still applies in the UK.
• Clarifying the status of retained EU law in UK domestic law to reflect the fact that much of it became law without going through full democratic scrutiny in the UK Parliament."

The focus on the Bill therefore appears to be on EU retained law (i.e. some EU law measures which were effectively transferred into domestic law and 'retained' as UK law following the end of the Brexit transition period). This approach was taken in relation to a significant volume of EU legislation and according to the Queen's Speech briefing paper, "the Government’s review of retained EU law has, to date, identified over 1,400 pieces of EU-derived law that have been transferred into UK law."

The proposals for the Brexit Freedoms Bill could have an impact on public law claims founded upon EU retained law going forward. For example, currently, a piece of retained EU law in our domestic legislation may be similar (if not the same) in substance to the original EU law measure on which it was based. This means that post-Brexit, any claim based on that piece of retained EU law may be similar in substance to a claim that would have been based on the original EU law measure before Brexit. However, the Brexit Freedoms Bill appears to envisage facilitating amendments / replacements of retained EU law. This could create potential for greater (and possibly more accelerated) divergence of our domestic law from EU law measures.

Conclusion

Each of the developments discussed above has the potential for far-reaching implications. Taken together they give a strong indication of the Government's wish for Parliament and the Executive to "take back control", whether that be by moving away from EU law or the influence of the European Court of Human Rights, or encouraging the courts in judicial review cases to consider allowing unlawful acts to remain valid at least for some period of time.  It is also interesting to see a further attempt to use an ouster clause. It remains to be seen how the courts will interpret and apply these new provisions once they are included in legislation and come into force.