Legislative Scrutiny: Judicial Review and Courts Bill Contents

Conclusions and recommendations

Quashing orders

1.Remedial flexibility allows the courts to provide an appropriate remedy in each case. Providing the courts with the ability to suspend a quashing order is a reasonable addition to the range of remedies available that, if used appropriately, could reduce administrative difficulties, and even benefit claimants. However, a presumption in favour of quashing orders with suspended or prospective-only effects is unnecessary and undermines the remedial flexibility that the former Lord Chancellor claimed was the ultimate goal of the Bill at the time of its introduction. As the Explanatory Notes on the Bill state: “the diverse circumstances of possible cases make it difficult to assume that any one remedy or combination of remedies would be most appropriate in all circumstances.” While generally a judge would remain free to choose whether to make a suspended and/or prospective-only quashing order, the Bill does nevertheless make them compulsory in certain circumstances. In this way, Clause 1 appears to be an attempt to weight the scales in favour of the defendant public authority over the claimant. (Paragraph 29)

2.Quashing orders with prospective-only effects pose a more significant risk of denying an effective remedy to claimants and allowing decisions and measures to have legal effect despite being found to be unlawful. Imposing any requirement to use these new remedies, rather than simply allowing the courts to use them where they consider it just, increases the risk that they will be used in a way that denies an effective remedy and undermines the enforcement of human rights. (Paragraph 30)

3.The Government should remove the requirement that judges make quashing orders with suspended or prospective-only effects where they would provide adequate redress and there is not a good reason not to, as this amounts to an unnecessary, albeit low level, intrusion into judicial remedial discretion. Furthermore, the proposed new section 29A(8) should be amended to include in the list of matters to which a judge must have regard when deciding whether to make a suspended or prospective-only quashing order. (Paragraph 31)

Reversing Cart

4.Judicial supervision of the Upper Tribunal protects against legal error. While only a small proportion of Cart judicial review applications are successful, those applications may prevent individuals being wrongly removed from the UK to face the most heinous human rights violations. The Government should introduce procedural reforms, such as changes to the time-limits for bringing Cart judicial review, and assess their impact, before pursuing the ‘nuclear option’ of ousting judicial review from Cart cases. Furthermore, every effort must be made to ensure that the initial decision-makers and the FTT make the best possible decisions when cases are before them, thereby limiting the need for asylum seekers to rely upon a third opportunity to have their application for permission to appeal considered. (Paragraph 41)

Ouster clauses

5.We are concerned by the Government’s indication that the ouster clause designed to reverse Cart will be replicated in other legislation. The extensive use of ouster clauses will diminish the ability of judicial review to challenge executive action and expose unlawfulness. This has the potential to undermine the rule of law, which is essential for the protection and enforcement of human rights. (Paragraph 48)

Published: 7 December 2021 Site information    Accessibility statement