Published:  21st July 2021

Responding to publication of the Judicial Review and Courts Bill, Jo Hickman, Director of the Public Law Project said:

“The Judicial Review and Courts Bill warrants close scrutiny by Parliament. It is very difficult to see how the public will benefit from this legislation.

“Nobody is quite sure of the problem the Government is trying to fix – or why the pressing need to do so now.

“The Bill appears to weaken, rather than reinforce Government accountability. This would undermine the Government’s stated objectives of protecting the individual from an overbearing state. 

“It is particularly troubling that the Government is planning to remove Cart JRs in a way that is intended to create a framework for future legislation to ‘oust’ the jurisdiction of the courts. Quite simply, the intent of ‘ouster’ legislation is to immunise the Government from accountability for acting unlawfully. An ‘ouster’ is a ‘get out of jail free’ card. 

“Close attention needs to be paid to provisions in the Bill which seek to suspend the effect of remedies or take away their retrospective effect. Not being able to undo the past consequences of an unlawful decision could undermine the point of having a legal mechanism that holds public authorities to account. This could plainly lead to some very unjust outcomes and could make it impossible to undo poor and unlawful decisions.

“Instead of giving ‘tools’ to judges, it looks like this Bill is designed in fact to restrict the remedies which courts can provide.  The Bill envisages courts being required to use these new ‘tools’ in some circumstances, and having the power to do so even where it would leave the claimant without an ‘adequate remedy’.

“Throughout this process, the evidence to substantiate proposals has been either non-existent, misleading, or consistently hidden from view. Where it has been uncovered through FOIA requests and investigation, there are some obvious inconsistencies and inaccuracies. This is no way to undertake constitutional reform.” 

Use of evidence in judicial review reform 

  • The IRAL reported that the success rate of Cart JRs was 0.22%
  • The Office for Statistics Regulation concurred that this figure could not be right. It said the figure was ‘overly simplistic’.  
  • The Ministry of Justice claims in its press statement that the success rate is 3%. That figure was mentioned neither in the IRAL nor in the Government’s consultation on Judicial Review. Independent analyses by Joanna Bell and Mikolaj Barczentewicz puts the success rate even higher. 
  • The MoJ has consistently refused to publish evidence submitted by Whitehall departments to the IRAL despite numerous FOIA requests.  
  • From a Home Office FOIA response to PLP in July, it is evident that the cost of JR is in fact less than the Home Office figure that was reported by the IRAL.  
    • The IRAL said: “The Home Office puts the cost of a substantive judicial review hearing at £100,000” 
    • In response to PLP’s FOIA request, the HO said on 7 July 2021: “Whilst the majority of cases do not reach £100,000 it is possible for costs to escalate to, and exceed this figure if adverse costs are awarded and compensation is paid.” 

NB: This page was updated on Wednesday 21 July to reflect the publication of the Judicial Review and Courts Bill.