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Proposed judicial review reform: "Chilling" or "Not terribly dangerous"?

Scrutiny of the Judicial Review and Courts Bill continues this week, with the general committee hearing representations from the Law Society, Liberty and the Public Law Project (among others). Opinion remains divided as to whether the proposed reforms are "drastic", or whether they are less profound than originally feared, or both.

The Law Society has issued a press release entitled "Judicial review reform plans would have chilling effect on justice". That statement makes clear its concerns about the impact of the proposed reforms, in particular the introduction of "prospective only" remedies "which would lead to judgments that would apply only in the future, leaving past wrongs to stand... A statutory presumption in favour of these future-only remedies – which puts legal limits on when judges could make an alternative judgment that would right a past wrong – would further entrench the injustice of these changes."

On the subject of suspended quashing orders, the statement explains that “We support the introduction of suspended quashing orders, which would allow a judge to give the state time to make necessary arrangements before their decision takes effect. However, this should only be at judges’ discretion and not, as is proposed, the norm which could only be deviated from in prescribed circumstances."

The debate surrounding the proposed reforms is, however, much wider than just what the legislation will prescribe in terms of remedies and judicial discretion. Much of the discussion focuses on whether this is the pre-cursor to a wider change that will reduce the accountability of institutions exercising the powers of the state, and whether that would be detrimental to the system of checks and balances that makes up the constitution.

At a recent panel discussion, a former Home Secretary summed up the views of many interested observers, commenting that "The bill as laid down at the moment is not probably terribly dangerous, but the stepping stone on which others might tread probably is. It is always, as I have been reminded time and time again when I was a cabinet minister, it is always what someone else might do with the legislation or action you are taking."

The issue was foreshadowed in the Conservative Manifesto of 2019. Few people would argue with the objectives for reform as stated: to ensure that judicial review is not abused to conduct politics through the courts and to reduce delays. How you feel about the proposed reforms will largely be informed by whether you believe that:

a) the Courts have overstepped in recent years, taking decisions that are properly for Government or Parliament; or

b) the Courts have been used as a tool to improperly advance political arguments; or

c) the Courts have been fulfilling their role properly and impartially but the resulting decisions have prompted the Government to rebalance the system to effect different outcomes.

Irrespective of your view, because judicial review touches all aspects of professional and personal life, regardless of the form in which the Bill ultimately becomes Statute, it is unlikely that the debate about the future of judicial review and the role of the judiciary will end there.

"One of the main benefits of judicial review is that it holds public bodies accountable, and we’re not just talking about central government - we’re talking about all sorts of public bodies making decisions affecting people’s day-to-day lives."

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