Judicial Review Reform
On 21 July 2021 the Judicial Review and Courts Bill was presented to Parliament. It had its second reading in the Commons on 26 October and as of 2 November is at Committee Stage. Born out of the findings of the Independent Review of Administrative Law Panel, which submitted its Report to the Lord Chancellor in January of this year, the Explanatory Notes to the Bill state that the proposed reforms to judicial review are aimed to ensure that “Government and public authorities are subject to the law, apply the intent of Parliament, and protect individuals’ rights” as well as introducing measures to help address backlog across criminal courts, tribunals and Coroner’s Courts and continue to modernise the delivery of justice and improve efficiency[i]. The key changes include modifications to quashing orders and the proposed removal of “Cart” JRs.
Judicial review (JR) is a key mechanism available to applicants, decision makers and various interested parties (such as local communities or environmental groups) to challenge the legality of decision made by a public body, where no alternative route (such as planning statutory review) is available.
JR is not generally concerned with the merits or substance of a decision; rather, when considering a JR claim, the court must examine the process by which the decision was made and determine whether the decision maker acted lawfully in reaching its decision. Where a court finds that a decision is unlawful, there are a range of remedies available, though the most common is a quashing order which has the effect of rendering the impugned decision as of no legal effect. A court may order the matter be remitted back for redetermination in light of the legal errors found.
JR has been well utilised for many years to challenge numerous planning decisions ranging from policy decisions by the Government to individual decisions of local authorities in relation to planning policy and permissions. Decisions in relation to current JRs such as the challenge by Rights:Community:Action against the new use class E and permitted development rights to build upwards (which is being heard by the Court of Appeal on 5 October) and the London Borough of Islington’s challenge against the new permitted development right MA (change from class E to residential) are eagerly awaited. There have been a number of notable JRs in relation to nationally significant infrastructure projects successfully pursued by community and other interest groups, including recent decisions quashing development consent orders for the proposed A303 dual carriageway within the Stonehenge World Heritage Site, the Norfolk Vanguard Offshore Wind Farm, and the Airports NPS relating to the Heathrow expansion.
The Bill proposes two modifications to remedies under the Senior Courts Act 1981 available at judges’ discretion where the specific facts and circumstances of a case require it[ii]:
- A suspended quashing order, meaning that such an order will only come into effect after a specified time; and
- A prospective-only quashing order, meaning that such an order may prohibit an unlawful decision being employed from a specified date in the future, without impugning any actions based on that decision prior to the specified date.
The question really is, in what circumstances would either of these modified remedies be appropriate. The Government’s fact sheet[iii] that accompanied the Bill states that suspended quashing orders would allow affected parties to prepare for the order being quashed and take any necessary action (such as making transitional arrangements). It also suggests that prospective quashing orders may be necessary in the case of a “large regulatory scheme, the undoing of which would cause significant economic consequences or prejudice the wellbeing of third parties”.
The Bill aims to create a broad presumption that the courts may use the new variations of quashing orders where they offer adequate redress, unless there is a good reason not to do so. The list of non-exhaustive factors the courts must have regard to when deciding whether or not to impose an amended quashing order are:
- the nature and circumstances of the relevant defect;
- any detriment to good administration that would result from exercising or failing to exercise the power;
- the interests or expectations of persons who would benefit from the quashing of the impugned act;
- the interests or expectations of persons who have relied on the impugned act;
- so far as appears to the Court to be relevant, any action taken or proposed to be taken, or undertaking given, by a person with responsibility in connection with the impugned act; and
- any other matter that appears to the Court to be relevant.
The Equality and Human Rights Commission briefing dated October 2021[iv] has recommended that 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 second, perhaps more controversial, proposal of the Bill is to remove Cart JRs and the impact that may have on immigration and asylum cases. In the case of Cart, the Supreme Court held that the High Court could judicially review decisions of the Upper Tribunal to refuse permission to appeal from the First-tier Tribunal. This amendment is pursued on the basis that Cart JRs make up a significant portion of the overall JR workload in the Courts but, the Government contends, a have very low success rate[v]. The proposal therefore is advanced on the basis that it will free up valuable High Court resources and uphold the jurisdictional status of the Upper Tribunal.
While Cart JRs are not a feature of planning practice, the proposal to abolish Cart JRs has been met with much concern in relation to fairness and the need to safeguard access to justice[vi]. In that vein, the Equality and Human Rights Commission briefing has recommended that the Government “give further consideration to the human rights and equality implications of the ouster of Cart judicial review challenges, including collecting and publishing data on success rates, the protected characteristics of Tribunal users and the human rights engaged in relevant challenges”.
Planning and JR
The predominant remedy in successful planning JRs is quashing orders. If the Bill is enacted as currently drafted, it remains to be seen how often either of the proposed quashing orders would be used a planning context.
In our view, there may be some appetite for the award of prospective only quashing orders, for example in relation to the Use Class E JR, should the Court find the decision unlawful, a prospective-only quashing order would mean that any development that proceeded lawfully at the time that Use Class E was in force would not subsequently become unlawful. This would give landowners some certainty around the use of their premises. The place of a suspended quashing order is a little less clear, though is conceivable in circumstances where the quashing of a decision requires tenants/occupiers to vacate the premises, to provide them with additional time to find alternative accommodation or premises, as the case may be.
Whether a wider range of quashing orders ultimately tips the balance away from claimants and towards the public body whose decision is being challenged remains to be seen. Certainly, in instances where the claimant’s objective is wholesale quashing of a decision, the possibility of a modified quashing order may militate away from a claim being brought. The Bill also raises questions around whether a public body may apply less scrutiny to its policy decision-making if less severe, modified quashing orders are available in respect of any challenge.
The main principles of the Bill were debated by Members of Parliament at the second reading. During the Committee Stage a detailed examination of the Bill takes place, following which the Bill returns to the floor of the House of Commons for its report stage, where the amended Bill can be debated and further amendments proposed.
Fore more information please contact Rachael Davidson or your ususal Charles Russell Speechlys contact.
[i] Judicial Review and Courts (parliament.uk).
[ii] jr-courts-bill-fact-sheet-courts-short-version.pdf (publishing.service.gov.uk)
[vi] See, for example, the consultation response published by the Public Law Project dated April 2021: Microsoft Word - 210429 JR consultation response v6.0 FINAL.docx (publiclawproject.org.uk)
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