Ministry of Justice to consult on judicial review reforms including power to suspend quashing orders, removal of ‘Cart judgments’, and procedural changes

The Ministry of Justice has launched a consultation on giving the courts the power to suspend quashing orders, removing so-called ‘Cart judgments’, and introducing a series of changes to civil procedure rules, following recommendations by the Independent Review of Administrative Law (IRAL) led by Lord Faulks QC.

Currently, quashing orders issued by judges take effect immediately, and the MoJ said the move would give judges “greater flexibility in order to avoid rushed policy solutions when government errors are identified”.

Under the proposals a court could set conditions and the quashing order would only take effect if these were not met after a certain period of time - allowing time to remedy the defects, the MoJ suggested.

The other immediate recommendation from the IRAL report, which can be viewed here, is for the removal of so-called ‘Cart judgments’ to prevent appeals in the Upper Tribunal being subject to judicial review in the High Court.

“Cart judicial reviews, which stand hardly any chance of success, were found to have led to delays with the swift processing of immigration and asylum cases, with last-minute challenges often made to frustrate the removal of people with no right to be in this country,” the MoJ said.

The Ministry will also consult on further measures “informed by the panel’s analysis”. These are:

• Examination of how ‘ouster clauses’ can best be given effect to.
• The introduction of wider options for remedies. “The proposal would give discretion to judges to order a remedy to be prospective-only in nature, increasing the range of tools available to the courts. This would ensure resources could be focussed on future solutions, rather than spending taxpayer money to fix past errors.”
• Consideration of defining exactly how and when a use of power is automatically ‘null and void’.
• The making of procedural reforms. Subject to the consultation, a range of efficiency proposals will be submitted to the Civil Procedure Rule Committee for their consideration. These include: removing the promptness requirement to make space for pre-trial resolutions; allowing parties to agree to extend the time limit for claims being brought; formalising procedure on replying to an Acknowledgement of Service (as suggested by the Review); looking for improvements to the pre-action protocol to encourage pre-trial solutions; plus others which are detailed in the consultation document.

The consultation paper can be found here.

The MoJ claimed the IRAL found courts were “increasingly considering the merits of government decisions themselves, instead of how those decisions were made – moving beyond the remit of judicial review”.

The Lord Chancellor, Robert Buckland QC MP, said: “We must seize this opportunity to restore a proper balance between the institutions that have been so integral to our success as a nation – to protect the rights of individuals, our vital national security and effective government.

“These essential reforms will defend the judiciary from being drawn into political questions and preserve the integrity of Judicial Review for its intended purpose: to hold the government to account, apply the intent of Parliament, and protect individuals.”

In its conclusions the IRAL panel stressed that it had had to undertake the review in the middle of a pandemic. “The size of our task and the limited time available has meant that this report could never be a complete analysis of judicial review (if that were possible)."

The panel said it did not think it helpful to record its views “on the relatively few judicial review cases that have attracted particular attention”.

There would not have been agreement, the report said, adding that “the fact that ‘difficult’ cases attract different views is true in other areas of law and by itself is rarely justification for radical reform”. The panel stressed that the great majority of cases involved the straightforward application of well-established judicial review principles.

“The Panel, however, is well aware that there have been occasions when, in the words of Professor Varuhas, the courts may be thought to have gone ‘beyond a supervisory approach’ and employed ‘standards of scrutiny that exceed what is legitimate within a supervisory jurisdiction’,” the report said.

“That the courts have been able to do this is because Parliament has, for the most part, largely left it to the judges to define the boundaries of judicial review. Part IV of the Criminal Justice and Courts Act 2015 may be regarded as an exception, but it represented only a modest legislative intervention, and in the response to our call for evidence, there was no consensus as to its impact.”

In terms of the options available to the Government, the IRAL report said:

(a) General codification is an option but the advantages of this are comfortably outweighed by the disadvantages (Chapter 1).

(b) Parliament could legislate to reverse particular court decisions if there were a strong case for doing so (Chapters 2 and 3).

(c) Parliament could legislate more widely to set out in statutory form what is non-justiciable and/or the circumstances in which the courts should defer or exercise restraint. We do not recommend this course (Chapters 1 and 2).

(d) Parliament could legislate to specify the grounds for judicial review. We do not recommend this course (Chapters 1 and 2).

(e) Parliament could not exclude judicial review generally. This would be contrary to the rule of law.

(f) Parliament could oust or limit the jurisdiction of the courts in particular circumstances if there is sufficient justification for doing so. It would have to confront “hostility” from the courts, careful parliamentary scrutiny and rule of law arguments (Chapter 2).

(g) Parliament ought to intervene to reverse Cart (Chapter 3).

(h) Parliament ought to provide (or the judges should develop) a remedy of suspension to alleviate the bluntness of a quashing order (Chapter 3).

(i) It would be very difficult for Parliament to improve the law on procedure through legislative means. While Parliament would, of course, be entitled to change the law on standing, we do not recommend it do so; and we are not in favour of any tightening of the current time limits on bringing claims for judicial review (Chapter 4).

(j) We do, however, think that there may well be merit in abolishing the requirement of promptitude in the current rule that (with exceptions) claims for judicial review must not only be brought within three months, but promptly as well (Chapter 4).

(k) Further improvements to the law on procedure may be sought through non-legislative means. The courts should be encouraged to do more to address the issue of standing in claims that come before them. Criteria should be developed and publicised for determining when the courts will hear from an intervener in a claim for judicial review; and the government should revisit the guidance it currently follows in determining how to discharge its duty of candour to the court hearing a claim for judicial review against it (Chapter 4).

The report noted that there were significant potential implications for Scotland, Northern Ireland and Wales if there was to be any legislation.

The panel said it considered that the independence of the judiciary and the high reputation in which it is held internationally “should cause the government to think long and hard before seeking to curtail its powers”.

It added: “It is inevitable that the relationship between the judiciary, the executive and Parliament will from time to time give rise to tensions. Recent decisions provide a clear illustration of this. On one view, a degree of conflict shows that the checks and balances in our constitution are working well.

“However, the government is undoubtedly entitled to legislate in relation to judicial review, and may well be justified in doing so in certain circumstances. None of the judges who provided submissions to us called this into question. Although there could be said to be an element of conventional law reform about some of our proposals, any decision to legislate more widely will essentially be a political one.”

The panel said one theme which its members would like to emerge from the review was that there was a continuing need for respect by judges for Parliament. “This is rendered easier where there is evidence of real parliamentary scrutiny. In this context, we welcome the fact that the Fixed-term Parliaments Act 2011 (Repeal) Bill 2021 is to be the subject of pre-legislative scrutiny by an all-party Joint Committee of the Houses of Lords and Commons.”

The panel also noted the recent observations of the Lord Chief Justice in the Dolan case when discussing the affirmative resolution procedure. The LCJ said: “It does go to the weight which courts should give to the judgment of the executive, because it has received the approval of Parliament.”

“We do, however, acknowledge that the excessive use of framework bills, where much is left to regulation, is much less reassuring,” the IRAL report said.

It concluded: “Respect should be based on an understanding of institutional competence. Our view is that the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”

Responding to the MoJ’s announcement, the Law Society said any reforms to judicial review “must not undermine the process as an effective and accessible mechanism for ensuring the accountability of government, public bodies and regulators”.

President David Greene said: “Judicial review is an essential part of the functioning rule of law, acting as a check on power. Reforms should seek to strengthen it, as some of the changes recommended by the independent panel may well do. We particularly welcome the recommended introduction of suspended quashing orders.

“In today’s announcement, the government has added additional proposals that go beyond the panel recommendations, some of which risk undermining the effectiveness of judicial review and must therefore be closely scrutinised over the consultation period in the next six weeks. “

Greene added: “The idea that there has been a loss of confidence in judicial review is questionable. Trust in judges is high, and the panel itself says it “cannot know either how the population at large feels about the appropriate constitutional place of judicial review or even about the constitution”.

“A Justice Week survey showed four out of five people think it is important government obeys the law, suggesting broad support for accountability mechanisms to uphold the rule of law.”