Published:  1st April 2022

House of Lords has voted in amendments to the Judicial Review and Courts Bill that will help ensure people can achieve fair outcomes from the courts when governments and public bodies act unlawfully.

They are:

  • Removing the presumption in favour of using suspended and prospective only quashing orders. This presumption would have limited the effectiveness of remedies a court can issue when it finds that a decision is unlawful and would interfere with a judge’s discretion. This is a huge win for judicial review and access to justice.
  • Maintaining a restricted ‘Cart’ supervisory jurisdiction in the Bill, which acts as a vital safeguard against serious errors in law.

If a court finds that a public authority has acted unlawfully, an important remedy available in judicial review is a ‘quashing order’; this overturns the unlawful decision or policy or regulations and undoes any adverse consequences.

Clause 1 of the Bill creates a presumption that a judge issuing a quashing order should make it ‘suspended’ or ‘prospective only’. A suspended quashing order allows an action by the public authority – which the court has said was unlawful – to continue to be treated as lawful until sometime in the future. A prospective-only quashing order means that the unlawful action by the public authority is only treated as unlawful from the point of the court order.

In its briefings on the Bill, PLP has highlighted its serious concern that a creation of a presumption in favour of using suspended and prospective only quashing orders would limit the effectiveness of the remedies that can be issued by a court.

We urge MPs to carefully consider the effects of such a presumption and follow suit. If the use of such orders becomes commonplace, remedies will insulate public bodies, including the government, from scrutiny and make it more difficult for individuals to defend their rights. MPs must not let that happen.

We are also pleased that the House of Lords has voted to maintain a ‘Cart’ supervisory jurisdiction.  

Cart judicial reviews are mostly used in immigration and social security cases to identify serious errors in law. They have prevented the removal of people to hostile regimes where they risked torture and murder and brought justice to benefit claimants who had been treated unlawfully. Clause 2 of the Bill sought to ‘oust’ this type of judicial review.

The House of Lords voted to maintain a Cart supervisory jurisdiction at the High Court level but, subject to one exception, without any right of renewal or appeal from the High Court’s refusal of permission or a dismissal of the substantive judicial review application, or indeed any other decision of the High Court. The one exception is that there is an appeal direct to the Supreme Court if certified by the High Court as involving a point of law of general public importance, and the High Court or the Supreme Court grants permission to appeal.

We urge MPs to retain this restricted supervisory jurisdiction which, as was remarked in debate,

“is a sensible compromise between abolishing Cart judicial reviews altogether and setting a defensible limit on the prospect of excessive satellite litigation by limiting appeals.”

Cases where Cart judicial reviews have been used concern matters of life and death; they are a vital safeguard that must be retained.