Judicial Review and Courts Bill Clauses 1 and 2: Consideration of Lords Amendments: a rule of law analysis
This Report analyses Clauses 1 and 2 of the Judicial Review and Courts Bill in advance of Consideration of Lords amendments in the House of Commons (21 April 2022). It supplements our previous Reports on these clauses.
Clause 1 allows a court in judicial review proceedings to make a quashing order which is either suspended, or only has prospective effect. In general, Clause 1 promotes the Rule of Law by clearly setting out the law in an accessible way and granting judges the power to grant an effective and nuanced remedy in a judicial review case.
The clause previously contained a presumption that a quashing order would be suspended or made prospective only. The House of Lords removed this presumption. Following constructive debate, this presumption has now been dropped. We welcome this as the presumption had the potential to undermine the Rule of Law.
Clause 2 originally sought to establish an "ouster clause" for certain decisions of the Upper Tribunal, meaning that those decisions could not be challenged in court. Clause 2 reversed what are known as Cart judicial reviews. Even though clause 2 contained some safeguards, it retained the bald proposition that even if a decision is made in error, it cannot be challenged.
Clause 2 was amended in the House of Lords. The amendment was a compromise which meant that decisions of the Upper Tribunal could be appealed to the High Court, but that the decision of the High Court would be final (save for a few exceptional cases where the court certifies that there is a point of law of general public importance). This compromise meant that the jurisdiction of the courts was not ousted, but there were limits on how many appeals could be made. It would be better for the Rule of Law if clause 2 was removed completely, but in the absence of this, the House of Lords amendment helps protect the Rule of Law.