Judicial Review Reform: Challenges to Unlawful Government Acts

Judicial Review has been making headlines recently. Our JR expert Nina Winter shares the changes to Judicial Review and the practical implications of the new Bill presented in July 2021.

What is Judicial Review?

Legal proceedings to challenge government or public body decisions are distinct from other legal proceedings. The challenges are brought by way of “Judicial Review” – a Judge reviews the decision of the government or public body and rules on its lawfulness.

Judicial Review is constrained – not every decision can be challenged, and to bring a challenge at all you must identify one or more of a limited number of grounds. You also need permission from the Court and proceedings must be issued very quickly after the decision you’re challenging was made.

Government Reforms to Judicial Review

Judicial Review has been in the spotlight in recent years following the Brexit Article 50 case. After that case, the Government said it would consider reforms to Judicial Review. This Government’s manifesto for the 2019 election included a constitutional review to consider Judicial Review reforms. Since then, a number of reports and consultations have been commissioned or undertaken by the Government, culminating in the Judicial Review and Courts Bill presented to Parliament in July 2021.

The initial proposals caused concern for some constitutional lawyers; Judicial Review is seen as essential in a functioning democracy because it is the means by which the Courts ensure that government and public bodies act lawfully.

The Judicial Review and Courts Bill

The consultation launched by the Government in the spring of 2021 contained a wide range of proposals. Interestingly, though, only two proposals have made it through to the Judicial Review and Courts Bill. Firstly, the Bill gives the Courts some additional powers when making quashing orders. A quashing order is where the Court “quashes” the original decision; this means that the unlawful decision is set aside as if it was never made at all. Secondly, the Bill prevents Judicial Reviews of Upper Tribunal decisions where the Upper Tribunal refuses permission to appeal; this will affect immigration cases in the main.

In relation to quashing orders, the Bill will allow the Court to suspend the quashing order for a period of time before the quashing order takes effect, and conditions can be attached to the suspension. This might be appropriate where, for example, steps need to be taken to plug a legal hole that will be created by the quashing order. The Bill will also allow the Court to remove or limit any retrospective effect of the quashing order – when the Court quashes an unlawful decision some time after it was made (perhaps even 12 months later), there can be retrospective effects of that decision being deemed to have never been made at all.

Where the Court suspends a quashing order or removes or limits retrospective effects, the unlawful decision is “upheld” during the period of suspension or as regards the retrospective effects.

The Bill sets out a number of factors that the Court must consider in deciding whether to exercise its new powers but, rather interestingly, there is in the Bill a presumption that the Court will exercise the powers unless it sees good reason not to do so.

What next?

Concerned constitutional lawyers may breathe a sigh of relief that the Bill doesn’t go as far as was first feared. But others may see the tinkering with Judicial Review in the Bill as the thin end of the wedge; if the Government still has Judicial Review in its sights, what will be next? The rule of law – and the supervision of the Courts in respect of unlawful government acts – is a fundamental pillar of the UK’s constitution, and no doubt constitutional lawyers will seek to defend that pillar from further assault.

About the Author

Nina Winter is a Senior Solicitor with 16 years post-qualification experience in litigation and dispute resolution, with particular expertise in judicial review challenges to government and public body decisions and an established reputation as a legal expert in the agricultural industry. Nina read law at Oxford University before training and qualifying at Eversheds. In 2006 Nina joined the legal team of the National Farmers’ Union (NFU), the leading trade association representing farmers and growers in England and Wales. In 2009 Nina was appointed as the NFU’s Chief Legal Adviser, a position she held for 12 years before joining Prospect Law. Having worked as in-house counsel for 14 years, Nina is able to quickly identify the legal issues at stake and to work pragmatically and seamlessly as part of a team to achieve the client’s objective. Nina’s expertise in agriculture means she brings a comprehensive understanding of the issues facing agri-businesses to her legal work.

Prospect Law is a multi-disciplinary practice with specialist expertise in the energy, infrastructure and natural resources sectors with particular experience in the low carbon energy sector. The firm is made up of lawyers, engineers, surveyors and other technical experts.

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