Judicial review reform
The UK has a long and proud history of honouring the rule of law. This means that everyone, including the government, must comply with the law.
Judicial review is a vital part of the justice system in England and Wales. It’s a way for people to:
- assert their fundamental rights
- test the lawfulness of decisions made by public bodies
- seek a remedy when things go wrong
Judicial review is an important part of our constitutional balance of powers between the executive, parliament, and judiciary.
It's a way of upholding the sovereignty of parliament and maintaining trust in government decision-making.
Judicial Review and Courts Bill
The government introduced the Judicial Review and Courts Bill in July 2021.
It follows a review conducted by the Independent Review of Administrative Law, as well as a government consultation on judicial review reforms.
This new law seeks to:
- give the courts the power to award suspended and prospective-only quashing orders, which will be subject to a statutory presumption as set out in section 1, subsections 9 and 10
- reverse the judgment in R (Cart) v The Upper Tribunal so that decisions of the Upper Tribunal are no longer eligible for judicial review
It also makes a number of procedural changes across the court system.
The Judicial Review and Courts Bill makes significant changes to the remedies available following a successful case, and what can be challenged in a judicial review.
Suspended quashing orders
The proposed power for courts to suspend a quashing order would allow the order to take effect at a later date.
We agree that introducing suspended quashing orders could enhance flexibility and be beneficial in some cases.
However, they should only be used in exceptional cases with strong justification.
Prospective-only quashing orders
A prospective-only quashing order stops a decision or action of a public body from applying in the future, meaning they only apply to past events prior to the court judgment.
As a result, any previous uses of the decisions, despite being found to be unlawful, would be upheld.
We believe this would prevent the successful claimant, and anyone else affected by the unlawful decision, from receiving a full remedy.
We’re concerned that this would discourage claimants from bringing a case in judicial review. It would risk leaving unlawful acts unchallenged and unremedied.
Judges must have a range of remedies at their disposal, and the discretion to award these, to ensure that justice is meaningfully done.
Introducing a statutory presumption restricts the flexibility that judges need, by requiring them in some cases to award a suspended or prospective-only quashing order. This could prevent a fair outcome that fits the facts of the case.
Removing decisions of the Upper Tribunal from judicial review
When decisions of the Upper Tribunal are judicially reviewed, it’s because there is a concern about an important point of law or procedural fairness.
These cases often involve issues of fundamental rights or access to vital services.
It’s important that this legal avenue is maintained to avoid potential injustices.
We believe the government should:
- remove the introduction of prospective-only quashing orders
- remove the statutory presumption
- maintain the ability to judicially review decisions of the Upper Tribunal
What we’re doing
October 2020 – we responded to the Independent Review of Administrative Law call for evidence on a range of aspects of judicial review
September 2020 – we held a roundtable of expert solicitors to discuss the Independent Review of Administrative Law’s terms of reference and develop our list of fundamental principles
We're looking for case studies of where judicial review has been used to protect individual rights.
If you have a client that would be willing to share their story, email our press officer Harriet Beaumont.