Government introduces the Judicial Review and Courts Bill into Parliament

This blog was first published on HSF Public Law Notes on 23 July 2021.

On 21 July, the Government introduced the Judicial Review and Courts Bill into Parliament. The Bill was foreshadowed in the Queen’s Speech on 11 May as part of the Government’s aim to ‘restore the balance of power between the executive, legislature and the courts’. The Government’s press release states that the Bill will ‘equip judges with the tools to give more tailored solutions in judicial review cases’. The Government has published a number of ‘fact sheets’ on aspects of the Bill, accessible here, as well as a detailed explanatory note.

As anticipated, the Bill includes provisions for quashing orders to be made subject to conditions, namely to not take effect until a date specified in the relevant order (i.e. suspension of the order) or removing or limiting any retrospective effect of the quashing of the impugned act. Judges will be “empowered” to use these powers at their discretion.

The Bill also provides for the removal of “Cart” judicial reviews(subject to some limited exceptions). Applications for judicial review against a decision of the Upper Tribunal (the “UTT“) to refuse permission to appeal against a decision of the First-Tier Tribunal (the “FTT“) on the basis that the FTT’s decision was affected by an error of law and therefore the UTT’s decision was also so affected are referred to as applications for a “Cart” judicial review. They derive their name from the decision of the Supreme Court in R (Cart) v The Upper Tribunal [2011] UKSC 28. Described as “inefficient” by the Government, the removal of “Cart” judicial reviews follows a recommendation made in the report by the Independent Review of Administrative Law (“IRAL“). The Bill does, however, provide for some limited circumstances in which a challenge can still be brought to a decision of the UTT on permission to appeal. These are set out in Clause 2(4) and include where the UTT has acted in bad faith or in fundamental breach of the principles of natural justice.

The Bill does not provide for clarification on the effect of statutory ouster clauses more generally or on the principles which lead to a decision being a nullity by operation of law. These were topics on which the Government recently consulted (along with the removal of “Cart” judicial reviews and modifications to quashing orders). The Bill’s explanatory note makes clear that the Government has “decided not to proceed with” these proposals following consideration of the IRAL report and responses to the consultation.

The Bill is awaiting a second reading on a date to be announced. With the House of Commons now in recess, this will not take place before Parliament resumes in early September.

Our previous blog posts on this topic can be found here:

• Publication of the Independent Review of Administrative Law’s Report and a Government Consultation into Judicial Review
• Government launches panel to consider the judicial review process
• Government’s terms of reference for review of the judicial review process
• HSF responds to the Call for Evidence for the Government’s Independent Review of Administrative Law

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