Published:  27th April 2022

The Government has made last minute changes to the Judicial Review Bill that will provide better protection to those harmed by unlawful state actions.

As the Bill progressed through ‘ping-pong’, the Government agreed to remove the ‘presumption’ in Clause 1 of the Bill, which would have required judicial review judges to use ‘suspended’ or ‘prospective-only’ quashing orders unless there was a good reason not to.  

In evidence to the Bill committee, several witnesses explained that quashing orders allow the courts to invalidate unlawful government decisions and that a presumption for such orders to be suspended or prospective only would limit their effectiveness and undermine judicial discretion.

Jo Hickman, Director, Public Law Project said:

“The point of judicial review is to help individuals to hold governments to account and protect them from the consequences of unlawful acts. The ‘presumption’ would have chipped away at one of the most important ways in which people can check the power of the state.

“This news is very welcome. It is to their credit that ministers have listened, reflected, and acted in the light of evidence-based arguments put forward consistently and in good faith.

“While PLP continues to have concerns about how these new quashing orders may work in practice, the most problematic aspect of Clause 1 was always the presumption.

“We continue to have concerns about Clause 2 of the Bill, which ‘ousts’ Cart judicial reviews which are used mostly in immigration and social security cases to overturn serious errors of law made by tribunals. Cart JRs have prevented deportations to authoritarian regimes where people risked torture and death, and brought justice to very vulnerable people who were unlawfully denied their benefits.

“We urge the Government to commit to reviewing how this ouster clause works in practice and to take action if people’s rights are put at risk.”

Further constitutional reforms are expected in this year’s Queen’s Speech, including proposals to axe the Human Rights Act 1998 and a so-called “Brexit Freedoms Bill” which will give ministers new powers to unilaterally change retained EU law without a parliamentary vote.

PLP will continue to work with civil society, Government and parliamentarians on all sides to ensure that these plans respect the rule of law and access to justice, and promote accountability of government.