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Powers for judges to modify quashing orders among key measures as Judicial Review and Courts Bill introduced

The Judicial Review and Courts Bill has been introduced to Parliament today (21 July), with the Government claiming it would “equip judges with the tools to give more tailored solutions in judicial review cases”.

The Ministry of Justice said the controversial legislation would also “create a better balance between the rights of citizens to challenge executive decisions through judicial review and the need for effective government”.

The Bill will empower judges to modify quashing orders by introducing two changes, to be used at the discretion of individual judges:

  • Suspending the effects of a quashing order – “this means that a judge can delay the point at which a government action will be overturned. This will improve the public policy making process by, for example, allowing time for a Department to consult on the best way to replace an administrative regime, rather than creating a rush to do it immediately”.
  • Limiting or removing the retrospective effect of quashing orders – “meaning judges can determine the Government’s action unlawful, without invalidating any prior actions. For example, if a judicial review judgment found that an employment regulation which gave workers healthcare was found unlawful, it would jeopardise their access to a particular form of healthcare under current law. The new laws mean that a judge can ensure that continuing access to that healthcare was lawful even though the regulation had been ruled unlawful.”

The MoJ also said the so-called ‘Cart’ judgment would be reversed as part of the Bill to prevent parties who have already been refused permission to appeal by both the First-tier and Upper Tribunal from trying a third time through a judicial review in the High Court. Many Cart cases arise from immigration and asylum appeals.

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Lord Chancellor, Robert Buckland QC MP, said: “The Government has pledged to ensure that the courts are not open to abuse and delay. Today we are delivering on that commitment.

“We are giving judges the powers they need to ensure the Government is held to account, while tackling those who seek to frustrate the court process.”

The MoJ said the legislation would not address the issue of nullity as set out in the consultation. “Instead, the new remedial powers make express provision that the operation of nullity does not constrain their use.”

It also confirmed that the legislation would not address ouster clauses in the way set out in consultation. “Instead, it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation. This will draw a line under decades of uncertainty and confusion as to their proper use.”

Commenting on the publication of the Bill, Law Society President I. Stephanie Boyce said: “Proposed changes to the ways in which legal challenges can be brought against the state could still weaken checks on power and damage access to justice. 

“However, the MoJ seems to have heeded expert input on some issues and judges will be able to make suspended quashing orders, which we think would be sensible. Proposals that would have made complicated and unnecessary changes to when a court can rule an act is ‘unlawful, null and of no effect’ (nullity) have been dropped.”

However, Ms Bocye warned that there was “a great deal here that should ring alarm bells for people who come up against the might of the state”. 

She 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.”

The Law Society President said Chancery Lane also opposed prospective-only remedies “which leave the door open for righting a future wrong but do nothing for injustices from the past”.

She said: “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.”

The Law Society said it would continue to advocate for reforms that would help reduce the need for citizens to resort to the courts to test the legality of actions or decisions by public bodies. These include: improved access to legal aid; a strengthened pre-court stage; a strengthened duty to disclose information; and bringing back the right of appeal in immigration.

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