Key Facts

• The amendment attempts to remove the ability of courts to limit or remove the retrospective effect of quashing orders.
• A Public Law Project study from 2015 found that 18% of judicial reviews related to procedure and policy and 8% to wider public interest out of a sample of 502 cases.
• The Natural England case is used as an example where fear of a threatened judicial review led to the revocation of general licences for wild birds, causing concern among farmers.
• The Bill aims to encourage and expedite the accumulation of jurisprudence.
• Subsection (8) requires the court to consider the interests or expectations of persons who would benefit from the quashing of an impugned act.
• Amendment 35 seeks to remove the subsection allowing courts to impose conditions on remedies, which is opposed by the speaker.
• Amendment 13 aims to add new provision (1A).
• The amendment seeks to restrict remedies to situations deemed in the interest of justice.
• A previous vote on amendment 12 was negatived with 6 Ayes and 8 Noes.
• Amendment 14 would limit the use of remedies in subsection (1) to exceptional circumstances.
• Amendments 32 and 37 aim to require courts to consider environmental detriment and timely remedy provision for claimants respectively.
• Amendment 24 requires an effective remedy to be offered to claimants and others affected by impugned acts.
• The amendments aim to mitigate prospective-only quashing orders.
• Amendment 22 seeks to remove the presumption in favour of suspended or prospective-only remedies.
• Various stakeholders, including Professor Tom Hickman, Liberty, and the Public Law Project, oppose the statutory presumption proposed by clause 1.
• Witnesses testified to the necessity of the reform due to changes in judicial review over time.
• The Bill aims to affirm the proper purpose and sovereignty of judicial review.
• The Government has had its own consultation alongside that of IRAL.
• There is limited support for the statutory presumption from witnesses.
• Amendment 23 seeks to remove the presumption in section 29A(9) and insert a precondition for effective remedy.
• Clause 1 weakens judicial remedies available to courts.
• Amendments 20, 22, and 36 address specific issues with proposed sections of the Bill.
• Amendment 27 aims to modify the statutory presumption in the Bill.
• The Bill's provisions direct a judge’s reasoning and interfere with judicial independence.
• Government Members claim that their intention does not curtail a judge’s discretion.
• The statement references the case Hurley and Moore v. the Secretary of State for Business, Energy and Industrial Strategy.
• The government consulted on both the presumption and relevant factors for applying new remedies.
• Amendments 22 and 27 seek to remove the presumption at subsection (9) of proposed new section 29A(9) of the Senior Courts Act 1981.
• The Bill aims to develop principles and practice around new judicial remedies quickly.
• Amendment 24 proposes changing 'adequate redress' to 'effective remedy', which is seen as a semantic argument.
• Amendment 32 seeks to add environmental impact considerations, but the current drafting already allows courts to consider such issues if relevant.
• Amendment 36 aims to remove the consideration of detriment to good administration from the list of factors.
• The case involving Natural England's decision on general licences is cited as an example where new remedies could have been beneficial.
• Amendment 15 aims to protect collateral challenges in criminal proceedings.
• Amendment 16, 17, and 18 are linked amendments facilitating the inclusion of new subsections (5A) and (5B).
• Subsection (4) prevents raising the validity of delegated legislation as a defence but Amendments seek exceptions.
• Proposed new section 29A(5) requires an unlawful measure to be treated as lawful.
• Amendment 15 would protect collateral challenge and third-party rights by ensuring that the unlawfulness of a measure can be relied on in other proceedings.
• The amendment seeks to address the potential for people being charged with criminal offences under unlawfully made delegated legislation.
• Proposed new section 29A(5A) addresses claimants' reliance on illegality of rulings as a defence in criminal proceedings.
• Clause 1(1) includes proposed new section 29A(8), which lists factors for courts to consider when using the new remedies.
• The Bill allows courts to add conditions to orders, such as preventing further enforcement of unlawful decisions.
• Proposed new section 29A(1)(a) of the Senior Courts Act 1981 allows for suspended quashing orders.
• The use of suspended quashing orders is opposed as it undermines the principle of justice and judicial review's role in holding public bodies accountable.
• In exceptional cases, courts can issue declarations instead of quashing orders without causing administrative chaos.
• Suspended quashing orders do not apply in Scottish courts.
• The Employment Tribunal fees case of 2017 is used as an example where immediate relief was granted, avoiding retrospective injustice.
• Without clause 1, individuals affected by unlawful policies would receive refunds or remedies immediately.
• Clause 1 could allow unlawful fees to remain in place for up to six months before being rectified.
• Amendment 43 aims to introduce further exceptions to clause 2.
• Conditions for exceptions include absence of legal aid, minor status, accelerated procedures, and specific types of appeals.
• The amendment is contingent upon interpretative provisions in another amendment.
• Ouster clauses seek to prevent court challenges to decisions made by public authorities.
• The Tribunals, Courts and Enforcement Act 2007 contains an ouster clause related to upper tribunal decisions but lacks clear language establishing it as such.
• Cart judicial reviews are used to challenge errors of law in upper tribunal decisions.
• Government proposes legislation to reverse the law on Cart judicial reviews.
• The upper tribunal deals with appeals from various tribunals where Cart judicial review can be used when no other appeal right exists.
• Cart judicial review is crucial for safeguarding against errors in significant decisions affecting fundamental rights.
• The Government's programme has cut more than any other Department.
• Clause 2 would severely restrict Cart judicial review, affecting all four chambers of the upper tribunal.
• Between £364,000 and £402,000 a year in savings are estimated from clause 2.
• Success rates for Cart JR are around 5%, significantly higher than IRAL's original estimate of 0.22%.
• Cart JRs relate to approximately 750 cases per year.
• The success rate for these types of judicial reviews is around 3.4%.
• Cart JRs have been used in cases involving asylum seekers, child trafficking victims, and individuals at risk from persecution or torture.
• Removal of Cart judicial review affects individuals in immigration cases who are some of the most vulnerable: children, survivors of torture and trafficking, and those with mental health issues.
• Since 2012, there have been approximately 5,870 judicial review applications labelled as 'Cart immigration' and 423 labelled as 'Cart other'.
• Cart JR cases involve either an important point of principle or practice that would not otherwise be considered, or some other compelling reason.
• The clause represents a misdirected attack on access to justice without addressing underlying issues in the justice system.
• Clause 2 could result in the loss of a crucial review.
• Amendments 43, 42, and 44 are mentioned as relevant.
• A statistic of 3.6% was used by the right hon. Member for Tottenham to justify similar measures in 2004.
• The amendments aim to expand exceptions in clause 2 of the Bill.
• Clause 2 restricts High Court’s jurisdiction over statutory tribunal appeals system.
• Legal aid has been reduced for non-asylum immigration cases since 2012.
• Nationality and Borders Bill seeks to constrain judges' interpretation of refugee definitions.
• Assistant Professor Samuel Beswick from the University of British Columbia testified against the bill.
• Amnesty International UK also presented concerns about the bill.