Judicial review bill out today

But powers will be “used at the discretion of individual judges”

The government will be publishing its Judicial Review and Courts Bill shortly before lunchtime today. We know some of the changes it will make to judicial review — but nothing about what it will do for the courts.

The bill will not be debated in parliament before the autumn. But the lord chancellor Robert Buckland will be outlining his plans in a speech this afternoon.

Royal Courts of Justice, London, 2008 (photograph by Nick Garrod)

This is what we have been told so far:

Quashing orders

A quashing order is one that overturns or sets aside an unlawful decision made by a minister or some other public authority. The Ministry of Justice says the bill “will empower judges to modify quashing orders by introducing two changes, to be used at the discretion of individual judges”.

That last phrase is extremely important. A consultation paper published in March said the government was considering considering either a presumption that remedies would be prospective-only in relation to statutory instruments or even a requirement that remedies in such cases should be prospective-only unless there was an exceptional public interest requiring a different approach.

It also suggested a presumption that any quashing order should be suspended or even a requirement that all quashing orders would be suspended unless there was an exceptional public interest not to do so.

But this is what the Ministry of Justice now says its bill will do:

1. Suspending the effects of a quashing order. This would allow a judge to delay the point at which a government decision is overturned. The government says that “this will improve the public policy-making process by, for example, allowing time for a department to consult on the best way to replace an administrative regime rather than creating a rush to do it immediately.”.

2. Limiting or removing the retrospective effect of quashing orders. This would allow judges to decide that government action was unlawful without invalidating any prior decisions. For example, the government says, if a court found that an employment regulation giving workers healthcare benefits was unlawful, the judgment would currently jeopardise their access to those benefits. “The new laws mean that a judge can ensure that continuing access to that healthcare was lawful even though the regulation had been ruled unlawful.”

Both these proposals could work in the government’s favour, of course. The first would allow it to rectify an unlawful policy without adverse consequences. And the second would allow it to avoid compensating people who, to adapt the government’s example, had been wrongly denied benefits in the past. But provided these remedies are entirely discretionary we can expect the judges to apply them fairly and appropriately.

Cart

As expected, the bill will overturn the Cart judgment. Following a decision of the Supreme Court in R (Cart) v Upper Tribunal in 2011, it has been possible to seek judicial review of a decision by the Upper Tribunal to refuse permission to appeal against a decision of the First-tier Tribunal. Because this extended process had led to so few errors of law by the First-tier Tribunal being identified and corrected, a panel chaired by Lord Faulks recommended discontinuing the practice.

The problem is that the Faulks panel got its statistics wrong. It produced figures suggesting that an error of law on the part of a First-tier Tribunal had been identified and corrected in just 0.22% of all applications for a Cart judicial review since 2012.

This figure was immediately criticised. Without admitting that its independent review panel had miscalculated it, the government says today that

research found that these claims — which are the most numerous judicial review cases — have a success rate of only around 3% compared to a 40-50% success rate for all other cases.

Independent analyses by Joanna Bell and Mikołaj Barczentewicz puts the success rate at higher than 3%.

Ouster clauses

The Faulks panel said:

Parliament has the power to legislate in such way as to limit or exclude judicial review. The wisdom of taking such a course and the risk in doing so are different matters. Indeed, the panel considers that there should be highly cogent reasons for taking such an exceptional course.

But the government’s consultation paper said it wanted to look at how ouster clauses could be made more effective in those specific and limited instances where there was sufficient justification. “As a core principle, the government considers that ouster clauses legislated for by parliament should not be rendered as of no effect, and invites consultees to put forward proportionate methods for achieving this.”

Today, we are told that the legislation will not address ouster clauses in the way set out in the consultation. “Instead, it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation.”

What the government is trying to say here is this:

1. The bill will say, using elaborate legal language, that a decision by the Upper Tribunal to refuse permission to appeal against a decision of the First-tier Tribunal is not judicially reviewable. This is a classic ouster clause — one that ousts the jurisdiction of the courts.

2. If that provision is challenged in court, the judges will accept its validity — not least because they generally agree that Cart was wrongly decided.

3. It follows that the elaborate wording used in the bill will have been effective in ousting the courts’ jurisdiction in this case.

4. Using identical elaborate language in future ouster clauses will enable these provisions to withstand future challenges in the courts.

The only person in the Ministry of Justice clever enough to have devised this cunning plan is surely the department’s junior minister in the House of Lords, Lord Wolfson of Tredegar QC. Whether the judges will prove to be cleverer still remains to be seen.

Nullity

Another proposal in the consultation paper was legislation that would make it clear when a decision was void and when it was merely voidable.

Fortunately, I don’t need to explain this arid distinction. We are told that the legislation will not address the issue of nullity as set out in the consultation paper either. “Instead, the new remedial powers will make express provision that the operation of nullity does not constrain their use.”

Court powers

We are told that “a range of other courts measures” will be introduced in parliament today. We are not told what those will be.

Comment

Some of the most outrageous suggestions in the government’s consultation paper seem to have been quietly shelved. But we must reserve judgment until we see the bill.

Labour’s shadow justice secretary David Lammy MP, perhaps referring to Buckland’s wish to be a constitutional “linchpin”, said:

It is unhinged that the Ministry of Justice is wasting resources on attacking a vital process that works well while the courts system is on the brink of collapse.

Jo Hickman, director of the Public Law Project, said;

Going by the Ministry of Justice press release, it is very difficult to see how the public will benefit from this legislation or what evidence it is based on. 

Nobody is quite sure of the problem the government is trying to fix — or why the pressing need to do so now. From what we have seen so far, it looks like the reforms will weaken, rather than reinforce, government accountability. 

This would undermine the government’s stated objectives of protecting the individual from an overbearing state. 

Update 3pm: the bill has now been published.

Although Buckland promised that the power to modify quashing orders is “to be used at the discretion of individual judges”. 

But the bill introduces a presumption: a court must suspend a quashing order or limit its retrospective effect “unless it sees good reason not to do so” (Clause 9 of new section 29A of the 1981 Act).

It seems to me that this fetters the judges’ discretion.

But Buckland disagrees. He says the bill gives the judges a discretion. “This is not a reduction in choice but it expands the options the judges have,” he told me after his speech to Policy Exchange.

It will be interesting to see what the judges make of that.

The bill has two clauses on judicial review and 42 substantive clauses on courts. It reintroduces the planned online procedure rules that were included in bills that lapsed in 2017 and again in 2019.