Big win for rule of law: government retains judges’ discretion in judicial review reform
The government accepted a key Law Society recommendation and agreed to remove the statutory presumption from what is now the Judicial Review and Courts Act, in a major win for justice and the rule of law.
On 26 April 2022, the House of Commons officially accepted an amendment removing the presumption from the bill, after the government signalled it would not seek to reinsert the provision.
Removing the presumption was our top priority for improving the bill.
The bill received royal assent on 28 April 2022.
What was the statutory presumption?
The statutory presumption originally included in the bill would have dictated to judges what remedies they could award to victims of unlawful state actions.
It would have required judges to award newly created suspended or prospective-only quashing orders – with which there are concerns – over other established remedies available in judicial review.
What the win means
We had raised concerns that this presumption could have led to cases of people successfully challenging unlawfulness but being denied proper redress for the harm they suffered.
Its removal preserves judicial discretion over the awarding of remedies and will ensure that claimants continue to receive fair outcomes in judicial review cases that fit the circumstances of the case at hand.
The win on the presumption was the culmination of almost two years of campaigning and engagement around the government's plans to reform judicial review.
The removal of the presumption also helps address concerns we had raised regarding other provisions in the Act.
We've said that the new suspended quashing orders introduced by the Act – which allow the court to give public bodies time to put things right – are welcome, especially if judges have discretion over when to use them.
Provisions allowing judges to make prospective-only quashing orders – which only provide a remedy going forward, not for previous harm done – remain in the Act and have some disadvantages.
However, removing the presumption greatly reduces the risk of these disadvantages materialising by ensuring that:
- they will not be forced on victims in cases where they would give only a partial remedy, and
- the interests of justice will remain the primary concern in awarding remedies