Published On: 16th November 2021Categories: General

The Judicial Review and Courts Bill has been slowly making its way through Parliament since July. In our latest blog, senior solicitor Paul Heron looks at the first two clauses in the bill and explains why they should be of concern to lawyers and social-justice campaigners.

(You can read the government’s Explanatory Note about the bill here, and check what stage the bill is at here.)

Judicial review is the legal procedure by which the courts examine the lawfulness of a decision made, or action taken, by a public body. It is a key tool used by PILC and other public-interest lawyers to challenge injustice and human rights abuses on behalf of clients.

When undertaken strategically, judicial review may not only help an individual claimant—it can also have a wider social impact. A successful judicial-review claim can result in a public body being forced to change an unlawful law, policy or practice. Other public bodies may also have to change their rules in line with the court’s judgment.

Judicial review can expose, and curb, the sexist, racist and anti-working class nature of UK law and policy. For example, PILC has assisted campaigners to use judicial review to good effect in challenging the selling-off of community assets to the highest bidder (Mohinder Pal v London Borough of Ealing [2018] EWHC 2154 (Admin))

Unfortunately, judicial review is an expensive course of action. Legal aid for such challenges, though available, has been limited in recent years.The Legal Aid Agency is increasingly reluctant to fund challenges to cuts in services or administrative-law decisions that may be viewed as having a ‘political’ dimension.

What’s wrong with the new bill?

We’re particularly concerned about the first two clauses of the Judicial Review and Courts Bill, which deal specifically with Judicial Review.

Clause 1 seeks to amend the Senior Courts Act 1981 (SCA) to revise the effect of a Quashing Order. Currently, when the High Court such an order, its effect is immediate, and the decision that has been ruled unlawful is treated as if it had always been invalid. A Quashing Order is not only an effective tool for the Court; it also offers clients a clear sense of justice and opens the door for potential damages in relation to the actions of the public body concerned.

The government clearly intends to water down the impact of a Quashing Order. First, the bill would give the courts power to delay the effect of an order until a future date. This would allow an unlawful decision, policy or practice to be treated as if it were still valid until that date.

Second, the bill would create the presumption that a Quashing Order would not have any retrospective effect. This could shield the government from accountability for subjecting people to unlawful policy or practices.

It’s worth considering the practical implications of such an amendment. In the case of Gunars Gureckis and others v Secretary of State for the Home Department [2017] EWHC 3298 (Admin), brought by PILC, the High Court quashed policy guidance from the Home Office that had led to the detention and deportation of homeless EU citizens. The policy was immediately suspended, and the Home Office was forced to stop detaining EU nationals who were sleeping rough. The quashing of the policy meant that those affected could secure compensation for unlawful detention or removal.

The changes proposed in Clause 1 could have prevented the policy being deemed unlawful retrospectively. It might also have stopped those affected from obtaining financial redress.

Clause 2 seeks to amend the Tribunals, Courts and Enforcement Act 2007, and reverse the impact of R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent) [2011] UKSC 28. This judgment allowed people who had been refused permission to appeal by both the First-Tier and Upper Tribunals to apply for judicial review in the High Court.

‘Cart’ judicial-review claims are currently a last resort in immigration and social security cases, and often involve fundamental aspects of human rights law. In immigration cases, issues relating to torture and the permanent separation of families are frequently at play. Access to justice in these areas has already been badly hit badly by cuts to legal aid.

The proposed reform would close another door in the face of people who have been trying, often for years, to assert their fundamental rights.

The Judicial Review and Courts Bill is now at the Committee stage. There is still time to make fundamental changes, which could include removing Clauses 1 and 2. Unfortunately, given their significant majority, it is likely that the government will be able to force the bill through with both clauses intact.

As when Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced cuts in funding for legal aid, the measures contained in this bill will disproportionately affect the poorest in society. Now, as then, there is an urgent need for lawyers to join with grassroots groups and the trade-union movement in opposition to a retrograde piece of legislation. The legal community’s failure to build such alliances around LASPO had severe consequences. We must not make the same mistake again.