A Question of Quashing: judicial review reform update

On 17 November we provided an update on the Judicial Review and Courts Bill which was at Committee Stage, focusing on how the proposed modifications to certain remedies (including suspended and prospective-only quashing orders) might work in a planning JR context.

The modified remedies have attracted a lot of comment including from the Equality and Human Rights Commission which, as we previously observed, recommended the Government “reconsider proposals extending the use of suspended quashing orders and introducing prospective only quashing orders. Alternatively, it should remove the presumption in favour of making a suspended or prospective only order”.

The Bill had its third reading in the Commons on 25 January 2022 where a significant number of amendments sought to the remedies provision of the Bill were considered. The Opposition tabled amendments intended to mitigate what was described as “the worst effects” of clause 1 of the Bill (which introduces suspended or prospective-only quashing orders together with a presumption in their favour). Such amendments sought:

• To retain the status quo in terms of remedies with the outright removal of suspended and prospective-only quashing orders;
• To clarify matters to be taken into account by the Court (eg the ECHR right to an effective remedy and right to provision of a timely remedy) when considering what remedy to award;
• The removal of the presumption in favour of issuing suspended, prospective-only quashing orders, or in the alternative, amended drafting to bolster the Court’s discretion in determining an appropriate remedy;
• To protect collateral challenges by ensuring that if a prospective-only or suspended quashing order is made, the legality of the delegated legislation can be relied on as a defence in criminal proceedings.

The above proposed amendments did not pass in the Commons and the Bill has now had its first reading in the Lords on 26 January 2022.

A date for the Lords second reading of the Bill is to be announced but we will watch this space with interest, particularly to see if some of the safeguards sought in the Commons will be reinstated by the Lords.

If you would like to know more about the Bill or our wider planning and Real Estate expertise, please contact Rachael.