Colin Ricciardiello looks at the likely effects of the government's proposed changes to the judicial review process.
Judicial Review proceedings are of great constitutional importance and are an independent mechanism for scrutinising and controlling the exercise of a public body’s power.
In 2019 Judicial Review was front page news when Gina Miller challenged the Government’s decision to prorogue Parliament by an Order In Council. The Supreme Court held that even though the Executive had the power to suspend Parliament, that power was not unlimited and its exercise was subject to review by the Court. In Miller the exercise of the power was held to be unlawful. The Dissolution and Calling of Parliament Bill (also mentioned in the Queen’s Speech) proposes to oust the courts’ jurisdiction to question the prerogative power to dissolve Parliament and call a new Parliament.
In July 2020 the Government appointed Lord Faulks QC to undertake an independent review of the Judicial Review procedure in England & Wales. The Faulks review was published in March 2021 and its general conclusions were that the procedure was in good health and the numbers of Judicial Review cases had not risen dramatically in recent times.
On 18 March 2021, a consultation was commenced on the Faulks recommendations. That consultation closed on 29 April 2021 and its results are being assessed – hence the Queen’s Speech proposals were expressed to be subject to the outcome of the consultation.
Against this background the Queen’s Speech set out the Government’s desire to “…strengthen and renew democracy and the constitution …” and introduce legislation that “…will restore the balance of power between the executive, legislature, and the courts “
The intention was revealed as being one which protects the judiciary from being drawn into political questions and preserves the integrity of Judicial Review for its intended purpose – to hold the Government into account, apply Parliament’s intentions and protect individual rights.
The reference to “balance” is on first blush difficult to follow as the Courts’ function is to apply and interpret the law: and that is not “balanced” against some other consideration. This might suggest that these aims are directed towards a recalibration which places certain areas of the Executive’s and Legislature’s activities beyond the scope of Judicial Review.
In the light of the Faulks conclusions it looks like there will be no major day-to-day reform of Judicial Review but there will be two significant changes in the Judicial Review Bill.
The first change will be to Judicial Review in the field of Immigration appeals. In its explanatory information on the Queen’s Speech, the Government has indicated that the Supreme Court’s decision in the case of Cart is to be overruled, so that Judicial Review will be removed from a category of immigration cases. Basically, the ability to seek Judicial Review of decisions of the Upper Tribunal refusing permission to appeal to it is to be ended. The Government considers that this class of case has hardly any chance of success (described as “numerous spurious cases challenging Upper Tribunal decisions”) and that they are launched as a delaying tactic to avoid deportation. The MoJ figures produced tend to support that view in that of more than 5,500 judicial reviews of Upper Tribunal cases analysed only 12 succeeded.
The other significant proposal for change picks up on the Faulks recommendation that in appropriate cases a suspended quashing order could be made on an application for Judicial Review. This would mean that a successful quashing of an unlawful act or decision can be postponed so as to give time to remedy the “mischief” instead of coming into immediate effect. The example given is a large infrastructure project not being delayed because an impact assessment had not been done properly.
This clearly is a response to some recent decisions that have been made by the courts in relation to Development Consent Orders (“DCO”), such as the Norfolk Vanguard offshore wind farm order. In that case, the Secretary of State’s decision to make the DCO was quashed by the court on the basis of a failure to assess the cumulative environmental impacts of the Vanguard project and a neighbouring wind farm proposal. The proposal in the Bill would allow for a remedy (for example carrying out the assessment properly within a specific time frame) without quashing the whole decision concerning the project.
This looks to be of particular value to third parties (like developers applying to the Secretary of State for a DCO or to a local planning authority for planning permission) who have honestly relied on what turned out to be an unlawful act. Though it is worth noting that the Court’s decision in Vanguard was not to quash the whole DCO, but just the Secretary of State’s decision to make it. The Secretary of State is currently consulting on the means by which he will retake the decision.
Another proposal arising out of the consultation was that in some cases where a Judicial Review claim succeeds, the court should have the power to grant a prospective remedy. It is not clear if this will be pursued in the Bill.
Prior to the Queen’s Speech there were concerns that the proposals for change would represent a serious exclusion or erosion of justice and accountability. It does not look like those concerns are going to become a reality but then again that will only become clearer when the detail of the bill is known.
Colin Ricciardiello is a partner at Sharpe Pritchard LLP
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