Judicial review is the mechanism by which people challenge the decisions and actions of public authorities in the courts. The Government has introduced legislation, the Judicial Review and Courts Bill, which would make some limited changes to judicial review. Article 13 of the European Convention on Human Rights, as incorporated into domestic law by the Human Rights Act 1998, guarantees all individuals whose human rights have been violated the right to an effective remedy. The proposed changes to judicial review directly engage Article 13 as they have the potential to adversely affect people’s ability to enforce their rights.
Clause 1 of the Judicial Review and Courts Bill would give the courts the power to make quashing orders with suspended and/or prospective-only effects when they find against a government decision or use of its delegated powers. A quashing order is an order which invalidates a decision which has been made by a public body. Suspending a quashing order would prevent it coming into effect for a period determined by the court, while giving it prospective-only effects would mean that the decision under challenge would only be invalidated from a particular point onwards rather than being considered to have been invalid all along. These new powers would expand the court’s remedial discretion and make it less likely that a decision or action will be quashed outright, which would benefit a defendant public authority. However, imposing a presumption that the courts use quashing orders with suspended or prospective-only effects where they would offer ‘adequate redress’ to a claimant does not guarantee that an individual would receive an effective remedy for a violation of their human rights. We recommend that the Government remove this requirement as it amounts to an unnecessary, albeit low level, intrusion into judicial remedial discretion. We also recommend the legislation should be amended so that courts also have regard to the Convention rights of any person who would be affected by the decision, and the duty to provide an effective remedy for a human rights violation under Article 13, when deciding to make a quashing order with suspended or prospective-only effects.
Clause 2 of the Bill reverses the Supreme Court’s decision in R (Cart) v Upper Tribunal. This would mean that it would no longer be possible to bring judicial review proceedings regarding Upper Tribunal decisions to refuse permission to appeal, known as ‘Cart judicial reviews,’ other than in exceptional cases. The Government has argued that Cart judicial reviews have a low success rate and high cost. However, Cart judicial reviews predominantly concern immigration and asylum claims. It seems likely that this change would result in a small number of people being wrongly removed from the UK, and their fundamental human rights being at risk. We recommend that the Government considers procedural changes before barring this type of judicial review.
The proposal to reverse Cart in Clause 2 is an ouster clause, which seeks to remove an area of decision-making from review by the courts. The Government has suggested that this ouster clause may be replicated in future, affecting other areas of decision-making. Increased use of ouster clauses could undermine judicial review of executive action and deny people a crucial mechanism for enforcing their rights. The Government must exercise great caution in its use of ouster clauses to ensure that accountability is maintained and human rights continue to be enforceable.