Key Facts

• Amendment 12 aims to remove statutory power for courts to award prospective-only quashing orders.
• Amendments 35, 40, and 41 are related to removing the ability to make a suspended or prospective-only quashing order subject to conditions.
• The Bill is seen as an attempt to reform judicial review, focusing on constitutional periphery rather than practical effects.
• The Conservative manifesto promised to 'update administrative law' but is seen as rhetoric to limit judges' influence.
• The Bill forms part of a broader programme of constitutional reform, including reviews of the Human Rights Act and Constitutional Reform Act.
• Other bills like the Elections Bill, Police, Crime, Sentencing and Courts Bill, and Nationality and Borders Bill are also part of this reform agenda.
• The Bill seeks to limit the check on Executive action through judicial review.
• Clause 1 gives judges power to issue suspended and prospective-only quashing orders.
• Independent Review of Administrative Law (IRAL) recommendations were mainly practical but raised concerns about executive power.
• The Bill negatively affects ordinary people's ability to hold the Executive accountable.
• Clause 1 could result in claimants winning their case but receiving no benefit or remedy for past injustice.
• The Bill provides for prospective-only or limited retrospective effect orders, which can insulate the Government from consequences of unlawful actions.
• The Ekins view refers to a 'tit for tat' approach where the Government changes rules in response to unfavourable decisions.
• Tinkering with the court process is seen as particularly problematic.
• Clause 1 proposes changes to the Senior Courts Act 1981, allowing for suspended or prospective-only quashing orders.
• Current practice is that a quashing order comes into force immediately and renders unlawful decisions null and void.
• The Public Law Project research shows that declarations rather than quashing orders are common in judicial reviews of statutory instruments.
• Section 31(2A) of the Senior Courts Act 1981 limits remedies if outcomes would not have been substantially different had the public authority acted lawfully.
• Clause 1 risks undermining individuals’ ability to hold the Government accountable and could impact third parties affected by unlawful human rights or equality decisions.
• The council’s planning authority permitted a temporary sewage outfall without obtaining necessary screening opinions and appropriate assessments under relevant regulations.
• A court might consider the balance of convenience in favour of public utilities, allowing unlawful development to continue rather than enforcing alternative arrangements seen as disproportionate.
• Dr Morgan suggested removing certain clauses from the Bill to give courts more flexibility in tailoring relief.
• Children with special educational needs rely on judicial review for legal redress.
• Local authorities may fail to comply with statutory timescales or provisions in education, health and care plans.
• Proposed new section 29A(1)(b) of the Senior Courts Act allows quashing orders with no retrospective effect.
• Amendments 12, 40, and 41 are being challenged by Slaughter.
• The Stonehenge case demonstrates potential loss to contractors due to prospective-only remedies.
• The Unison case shows a scenario where claimants could have been denied refunds if only prospective remedies were applied.
• The European Court of Human Rights holds that certain prospective-only remedies violate article 13 of the European Convention on Human Rights.
• Evidence cited from Louise Whitfield stated during Judicial Review and Courts Public Bill Committee on 2 November 2021.
• Clause 1 is seen as seeking to restrict people’s access to judicial review.
• Clause 1 of the Judicial Review and Courts Bill introduces measures concerning judicial review.
• Prospective-only quashing orders are criticized for their potential chilling effect on claimants and weakening of Government accountability.
• The introduction of prospective-only remedies is opposed by organisations such as the Law Society of England and Wales.
• The Bill is claimed to strengthen judicial review by providing additional remedies.
• Examples include the R (British Academy of Songwriters, Composers and Authors, Musicians’ Union & Ors) v. Secretary of State for Business, Innovation and Skills & Anor in 2015 case.
• Courts will have discretion to decide on a case-by-case basis regarding prospective-only orders.