The draft legislation, to be introduced to parliament today, would allow the High Court to suspend the effects of quashing orders and limit their retrospective effects.
In the words of a government statement, the law would mean that a judge “can delay the point at which a government action will be overturned. This will improve the public policy making process by, for example, allowing time for a department to consult on the best way to replace an administrative regime, rather than creating a rush to do it immediately”.
The bill would also enable the bench to determine that an action by the government, including secondary legislation, was unlawful, while not invalidating it. This will again allow decisions to stand until being replaced, avoiding potentially adverse consequences.
Stopping appeals from the tribunal system reaching the High Court is aimed squarely at speeding up deportations, according to the Ministry of Justice. But in principle, an end to so-called ‘Cart’ appeals could also affect the civil sanctions regime, under which appeals go to the First-tier Tribunal and Upper Tribunal. Although theoretical so far, under current rules their refusal to consider a case could lead to judicial review
“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,” said lord chancellor Robert Buckland.
The bill follows recommendations made by the Independent Review of Administrative Law earlier this year.
Shadow justice secretary David Lammy, a barrister himself, accused the government of using the pandemic to hoard more power: “It is unhinged that the MoJ is wasting resources on attacking a vital process that works well while the courts system is on the brink of collapse. Judicial Review is the process by which the public can challenge the government and other public bodies when they break the law. It is wrong for the government to try to put itself above the law by limiting where courts can hold the government to account.”
However, barrister Ned Westaway, one of ENDS’ legal commentators and newly-appointed chair of the UK Environmental Law Association (UKELA), said that it looks like the government had “rowed back on a lot of the proposals” put forward in a consultation earlier this year. UKELA’s response warned that the package – sold as targeted and incremental change – would “amount in practice to a significant reform of the system of judicial review which will act to the detriment of environmental justice”.
Stephanie Boyce, president of the Law Society of England and Wales said the proposed changes would "weaken checks on power and damage access to justice”.
“The MoJ seems to have heeded expert input on some issues and judges will be able to make suspended quashing orders, which we think would be sensible. Proposals that would have made complicated and unnecessary changes to when a court can rule an act is ‘unlawful, null and of no effect’ (nullity) have been dropped.
“However, there is a great deal here that should ring alarm bells for people who come up against the might of the state,” she continued.
The MoJ suggests that the bill would set a precedent for the government to remove certain forms of case from the scope of judicial review, known as ouster cases. “Parliament will need to think very carefully about the potential impact of any such proposals on the rule of law,” said Boyce.
The society added that it also opposed remedies that would right future wrongs but not those of the past. “This would have a chilling effect on justice by deterring people from bringing legal challenges, in the knowledge that they might gain no redress, and might also mean people would be less likely to get legal aid to bring cases where a prospective-only remedy was the likely outcome.”
The organisation would rather see improvements to legal aid access, more flexible time limits to encourage pre-court settlement and strengthening of disclosure requirements.