The Bill follows Lord Faulks’s Independent Review of Administrative Law last year into the balance between citizens’ rights to challenge government decisions and the need for effective government.
It gives judges discretion to: suspend the effect of a quashing order on a government department, to give the department more time to change; and limit or remove the retrospective effect of quashing orders, so judges can rule government action unlawful without invalidating its prior actions.
It removes what the Ministry of Justice (MoJ) terms ‘the inefficient “Cart” judicial reviews which can create unnecessary delay in immigration and asylum cases’. According to the MoJ, ‘Cart’ judgments, which allow parties refused permission to appeal at tribunal to bring a judicial review, have a success rate of three per cent compared to the 40-50% success rate of other cases.
However, ILPA (the Immigration Law Practitioners Association) said it was strongly opposed to the removal of ‘Cart’ judicial reviews. Its submission to the government’s consultation on judicial review reform included examples of 57 successful ‘Cart’ reviews, including a Sri Lankan torture survivor whose tribunal determination failed to mention a medico-legal report prepared by Medical Justice.
However, Michael Stacey, partner at Russell-Cooke, said: ‘The government seems intent on curtailing judicial review.
‘Its own Faulks Review didn’t find much that was broken and needed fixing, but perhaps that was considered to be the wrong answer. The government’s narrative is judicial overreach, perhaps driven by continuing irritation with Lady Hale’s decision on prorogation.
‘That was soundly based on law since the time of James I, before that judges mainly kept their heads down or lost them. There is little evidence that there is any widespread problem with judicial overreach or that this is undermining effective government.’
Sophie Kemp, partner at Kingsley Napley, said: ‘The reforms steer clear of mandatory or presumptive suspended and non-retrospective quashing orders, which risked removing an important deterrent.
‘The impact of the reforms (if passed into law) will therefore depend on the exercise of judicial discretion and litigants on both sides will have to wait and see. In future litigation, it is expected that both defendants and claimants will need to carefully analyse the need for and impact of these new orders: claimants will no doubt seek to develop the line of reasoning in Ahmed (No 2) [2010] UKSC 5 where the Supreme Court ruled that it could not properly order a suspended quashing order because a court “should not lend itself to a procedure designed to obfuscate the effect of its judgment”.’
On the ‘Cart’ proposals, Kemp said: ‘The decision to exclude the review of Upper Tribunal permission-to-appeal decisions is potentially more ominous.
‘The clear signals from [the Lord Chancellor] Robert Buckland is that “more is yet to come” with many predicting that ouster clauses may become more widespread―with the new Bill setting the framework for the removal of judicial review in future legislation.
‘In summary thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.’
