The Judicial Review and Courts Bill, which was introduced to Parliament on 21 July 2021, is receiving growing criticism from the legal profession for undermining accountability for decisions taken by the government, while some are relieved that proposed changes are milder than previously expected.
Under the current judicial reviews regime, the High Court of England and Wales and the Court of Session in Scotland have a supervisory jurisdiction over administrative decisions taken by public bodies, such as ministers or local authorities. The right to bring cases against the lawfulness of a decision or action by a public body does not challenge whether the decision was “right or wrong”, but rather whether the decision has been made following the right procedures. Nevertheless, this right has been under criticism for leading judges to go beyond their role in upholding the law and into taking political decisions that should be left to Parliament.
The Supreme Court’s ruling in 2019 that Prime Minister Boris Johnson had acted unlawfully by proroguing parliament for five weeks had further fueled the discussions on a reform of judicial reviews. Another example is the recent judicial review challenge brought by the Good Law Project of the government’s decision to award three multi-million procurement contracts for PPE in alleged breach of its duties of transparency. Yet, the majority of judicial reviews are brought by individuals against decisions about their entitlement to welfare benefits or social care.
Most importantly for migrants and refugees, the bill aims to mostly remove the ‘Cart’ judicial review, which – following a Supreme Court ruling in 2011 – allows parties in immigration and asylum cases, whose permissions to appeal have been refused in the first-tier and upper tribunal, to bring a judicial review case in the High Court. Clause 2(4) of the bill retains the High Court’s supervision in exceptional cases, such as when the tribunal was not “properly constituted” or acted “in fundamental breach of the principles of natural justice”.
Charlie Whelton, Liberty’s policy and campaigns officer, warned that “based on faulty statistical reasoning,
this bill proposes to remove a vital safeguard that protects marginalised people, especially migrants, from mistakes being made by public bodies which could have a catastrophic impact on their lives.”
The Ministry of Justice defends the bill by arguing that Cart judicial reviews are “inefficient” and create “unnecessary delay” based on claims that only 3% of Cart judicial reviews are successful, but other experts put the figure much higher. Robert Buckland, Lord Chancellor and Justice Secretary, backed the bill by declaring that “courts are not open to abuse and delay”, and that the bill gives “judges the power they need to ensure the government is held to account, while tackling those who seek to frustrate the court process.”
Indeed, judges’ powers are given two major changes in the bill: First, judges are allowed to delay the time it takes for their order to come into force. This is meant to improve the public policy making process, by allowing government bodies more time to replace an administrative regime. Second, judges will be able to limit the retrospective effect of a quashing order. In other words, the High Court can pronounce a government’s action as unlawful, without invalidating any prior actions taken by the government.
Stephanie Boyce, president of the Law Society, condemns these changes for having “a chilling effect on justice”: According to her assessment of the bill, removing or limiting the retrospective effect of an order results in victims of unlawful state action to not benefit from a ruling that the government had behaved unlawfully, including the person who brought the challenge. Instead of providing redress for damage suffered or benefit denied, remedies would only be prospective.
These concerns are shared by Jo Hickman, Director of the Public Law Project, who worries that the bill weakens government accountability and restricts remedies that courts can provide. She has strong doubts that the public could benefit from this legislation:
“Nobody is quite sure of the problem the Government is trying to fix – or why the pressing need to do so now.”
Shadow Justice Secretary David Lammy MP commented 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.”
Although the bill is not the fundamental attack on the rule of law that many expected, and the proposed changes appear minor, the devil is as so often in the details. It is true that the Ministry of Justice abandoned its proposal of increasing the use of ouster clauses, which shield government decisions from judicial reviews. But many fear that the way in which Cart judicial reviews have been restricted, could present the model for future restrictions. Additionally, restricting the ability of individuals, in particular marginalised asylum seekers, to challenge the decision-making processes of public bodies is always alarming. Further, delaying the point at which a government decision is overturned, effectively allows the government to “rectify an unlawful policy without facing adverse consequences”, as Justice Gap reporter Zaki Sarraf aptly put it. Instead of protecting “individuals against an overbearing state”, as the Ministry of Justice claims, the government would be able to avoid compensating people for unlawful government actions.
The bill is now at its second reading, where MP’s have the opportunity to debate its main principles once Parliament reconvenes in September after the summer recess. Then, MP’s need to ensure that the UK government is not avoiding accountability for its action with this draft legislation.