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Update: The Judicial Review and Courts Act 2022

Posted on 19 May 2022

The Judicial Review and Courts Bill was given Royal Assent on 28 April 2022, where it formally became an Act of Parliament (the "Act").

We have previously written about how the proposed bill did not go as far as anticipated in reforming the judicial review process. The key areas of focus in the Act are (1) changing remedies available to the court; and (2) altering the use of judicial review as a means of appeal from tribunals.

In relation to the first focus, during "ping-pong" - the back and forth of amendments to a bill between the House of Commons and House of Lords before receiving Royal Assent - the Government agreed to an amendment to Clause 1 of the bill.  

Previously, Clause 1 of the bill created a statutory presumption requiring judges to use new powers to issue suspended or prospective-only quashing orders "unless [there was] a good reason not to do so".  Quashing orders allow the courts to invalidate unlawful decisions of public authorities. The Government's proposals were to create a presumption whereby quashing orders would be suspended, (thereby allowing time for a body to correct the unlawful decision) or prospective only (meaning the decision would not have retrospective effect).

The proposed imposition of a presumptive or mandatory approach to remedies was widely criticised, for fear that doing so would fetter the courts' discretion when granting remedies and erode judicial review as a form of redress.

Whilst the Government rejected the argument that the presumption "is in some way dangerous", it accepted "persuasive arguments that it is in fact unnecessary" and amended the Bill accordingly. The Law Society, which petitioned for the change, has hailed the amendment as a "major win for justice and the rule of law".

In relation to the second focus, other disputed aspects of the bill have now passed into the approved Act. For example, Director of the Public Law Project, Jo Hickman, raised continuing concerns about clause 2 of the Act, which removes the jurisdiction of the High Court to review the Upper Tribunal's decisions on applications for permission to appeal against certain decisions made by the First-Tier Tribunal, thereby reversing the Supreme Court's decision in R (on the application of Cart) v The Upper Tribunal (Respondent) [2011] UKSC 28 – more information here. The day before the bill was given Royal Assent, Jo Hickman called on the Government to commit to reviewing how this clause "works in practice and to take action if people’s rights are put at risk".

Now that the bill has completed its passage through Parliament, time will tell how Clauses 1a and 2 of the Act will be applied in practice.

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