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 Act
The government introduced the Judicial Review and Courts Bill in July 2021. It received royal assent and became law on 28 April 2022.
The Judicial Review and Courts Act makes changes to judicial review by:
- giving the courts powers to award suspended and prospective-only quashing orders
- reversing 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.
Throughout the legislative passage of the Judicial Review and Courts Act, we engaged with parliamentarians to ensure the voices of solicitors were heard.
This resulted in a proposed statutory presumption being removed from the final law. The presumption would have required judges to award the new suspended and prospective quashing orders widely.
The removal of the presumption was a major win and the result of almost two years of campaigning and engagement. We believe it improves the act by maintaining judicial discretion as to which remedies are awarded. It also reduces the potential for negative impacts arising from the new remedies.
The act does, however, still makes significant changes to:
- the remedies that are available following a successful case, and
- what can be challenged in a judicial review case
Suspended quashing orders
The new power for courts to suspend a quashing order allows the order to take effect at a later date.
We believe this new remedy, if used in exceptional cases, will enhance flexibility and allow the interests of claimants and defendants to be balanced when awarding remedies in judicial review.
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 still have some concerns that this could prevent a successful claimant, and anyone else affected by the unlawful decision, from receiving a full remedy.
However, by leaving their use up to the discretion of judges, we hope the orders will only be used where strictly necessary and in a way that does not unfairly disadvantage the claimant.
Removing decisions of the Upper Tribunal from judicial review
A decision of the Upper Tribunal can no longer be judicially reviewed.
We still have some concerns that important points of law or procedural fairness, which would otherwise have been considered by the High Court, could be left unaddressed.
What we’re doing
April 2022 – we engaged with the government, securing an agreement to remove the statutory presumption from the bill, and the bill received royal assent
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’ll be monitoring the effects of the Judicial Review and Courts Act to ensure any negative consequences are brought to the attention of law makers.
If you've represented a client where any of the new measures have caused concern, email our policy advisor Hazel Blake.