New bill risks weakening checks on power

Commenting on the Ministry of Justice’s (MoJ) announcement of the publication of the Judicial Review and Courts Bill, Law Society of England and Wales 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, there is a great deal here that should ring alarm bells for people who come up against the might of the state. 

“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.

“We also oppose prospective-only remedies which leave the door open for righting a future wrong but do nothing for injustices from the past. 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.

“Judicial review doesn’t test politics, it tests lawfulness. It underpins democracy, drives good governance, enhances trust in the state and public decision-making.

“We will be scrutinising the detail of the bill when it is published. Judicial review must continue to have the teeth to uphold justice, ensure accountability of all public bodies and provide a check on state power, whichever the government of the day.”

Notes to editors

A Law Society survey suggested that judicial review cases are settled before court roughly half of the time (49%), rising to 90% in areas such as immigration law.

Independent research showed nearly 80% of claims that were settled before court were in favour of the claimant, indicating they were valid claims. Of the cases that proceed to a final hearing, 40–50% are decided for claimants and 50–60% for public authorities.

The Law Society will 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. We've advocated for the government to:

  • improve access to legal aid – greater access to early legal advice would help improve evaluation of claims' merits early on and encourage settlement
  • strengthen the pre-court stage – a significant proportion of judicial review cases are settled before the issue reaches the court, suggesting this is a useful process; greater flexibility to extend time limits where appropriate would allow for more negotiation
  • strengthen the duty to disclose information to guarantee full and timely disclosure of all relevant material held by public bodies; delays in disclosure often lead to increased costs for both sides
  • bring back the right of appeal in immigration – since this was pared back the number of immigration judicial reviews has gone up as other avenues of appealing Home Office decisions have been closed

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