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The Judicial Review and Courts Bill: A Rule of Law Analysis

Dr Ronan Cormacain

Executive Summary

This Report analyses clauses 1 and 2 of the Judicial Review and Courts Bill.

Clause 1 allows a court in judicial review proceedings to make a quashing order which is either suspended, or only has prospective effect. The fact that, under the Bill when enacted, the detail of the law on quashing orders will now be clearly set out and accessible promotes the Rule of Law. The ability to suspend a quashing order, or make it take effect prospectively, is to be welcomed as it gives greater flexibility to courts in granting a remedy. Judges have the power to grant a remedy which recognises that voiding an official action could cause administrative or practical inconvenience.

However, the presumption in favour of suspension or prospective only effect in the new section 29A(9) does not promote the Rule of Law. Although the power to suspend quashing orders or make them prospective ought to exist, it should only be exercised in exceptional circumstances, not as the default. The presumption ought to be reversed. The starting point should be that an unlawful action has no effect, and only in exceptional circumstances should the quashing order be suspended or have prospective only effect.

Clause 2 reverses the existing law so that what are known as "Cart judicial reviews" are no longer possible. It does so by creating an "ouster clause", ousting the inherent common law jurisdiction of the High Court so that a decision of the statutory Upper Tribunal cannot be reviewed by any court. The clause contains every possible measure to ensure that the ouster clause is judge-proof. It is not a blanket ouster clause which ousts the jurisdiction of the courts in all circumstances: a decision of the Upper Tribunal can be reviewed in a number of circumstances. However it purports to immunise decisions from review where the argument is that the Upper Tribunal has committed an error of law.

Ouster clauses should generally be rejected as they undermine the principle of legality, that we are all bound by the law. Clause 2 allows the Upper Tribunal to make a decision which contains an error of law, and for there to be no way to appeal against that decision. This undermines the basic common law principle of legality which flows from our commitment to the Rule of Law. Clause 2 should therefore be deleted from the Bill.

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