The government is today laying the foundations for what could be considered a new way to curb judges' powers with the Judicial Review and Courts Bill, which lord chancellor Robert Buckland QC MP will today present to parliament.
The bill will enable judges to modify quashing orders to delay the point at which a government action is overturned or to determine the government’s action unlawful without invalidating any prior actions. The legislation will also reverse the effect of the Supreme Court’s 2011 judgment in Cart, which would prevent Upper Tribunal appeals being subject to judicial review.
Buckland also wanted to look at how ‘ouster clauses’ – which define the bounds of the court’s jurisdiction - could be enforced. However, the Ministry of Justice said today that the bill will not address ouster clauses in the way set out in the government's Judicial Review Reform consultation.
‘Instead, it is expected that the legal text that removes the Cart judgment will serve as a framework that can be replicated in other legislation. This will draw a line under decades of uncertainty and confusion as to their proper use,’ the department said.
Today’s bill comes a year after the Independent Review of Administrative Law was launched, after the Conservative party pledged in its 2019 manifesto to end the 'abuse' of judicial review. Lord Faulks QC, who chaired the review, handed his report to Buckland in January. In March, the government opened a six-week consultation on reforms that went beyond the review's recommendations. The bill was announced in the Queen's speech in May.
Buckland received a series of damning responses to his proposed reforms. Justifying the bill, the MoJ said today that suspended quashing orders will improve the public policy making process by, for instance, allowing time for a government department to consult on the best way to replace an administrative regime rather than creating a rush to do it immediately.
Public law specialists disputed data used to justify reversing Cart, reporting their concerns to the statistics regulator. Internal government analysis showed the data might be wrong. However, the MoJ said today that research found Cart claims were the most numerous judicial review cases, had a 3% success rate and were estimated to cost taxpayers over £300,000 a year.
Buckland said: ‘The government has pledged to ensure that the courts are not open to abuse and delay. Today we are delivering on that commitment. We are giving judges the powers they need to ensure the government is held to account, while tackling those who seek to frustrate the court process.’
Law Society president I. Stephanie Boyce said: 'The MoJ suggests the bill may set a precedent for government to give itself the power to remove certain types of cases from the scope of judicial review which would effectively spawn a new breed of ouster clause. There are rare, exceptional circumstances when it is appropriate for the state to circumvent the courts, and only with strong justification. Parliament will need to think very carefully about the potential impact of any such proposals on the rule of law.'