The Judicial Review and Courts Act 2022 (the “Act“) received Royal Assent on 28 April 2022. The Act is based on the Judicial Review and Courts Bill (“Bill”) which was introduced to Parliament on 22 July 2021 after the Independent Review of Administrative Law (IRAL) had been carried out. The IRAL was established following the 2019 Conservative Party manifesto commitment that it would “ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays”.
The Bill proposed two key changes to quashing orders: (1) granting the Court discretion to suspend the effect of a quashing order and (2) to limit the retrospective effect of such an order, allowing the Court to order that a challenged decision will not be overturned until a date in the future. The Bill also proposed to abolish ‘Cart’ judicial reviews such that when the Upper Tribunal refuses permission to appeal a decision of the First-tier Tribunal, that decision is final and not liable to be questioned or set aside in any other court (subject to certain limited exceptions).
The limitation that a quashing order should have only prospective effect was the most controversial change put forward in the Bill. Quashing orders are the most common remedy awarded to a successful claimant. The proposed limitation meant that the decision, albeit found to be unlawful, will remain valid up to the date of the Court’s decision, which means that those affected by the decision will be unable to obtain redress for any harm caused up to that date. At the time the Bill was introduced, a quashing order always nullified the decision being challenged such that it was completely invalid. The decision maker had to make the decision again in the light of the Court’s findings. The government argued that if quashing orders only had prospective effect, this would ensure good administration and increase certainty, although it also acknowledged that this could lead to unjust outcomes for those who have already been affected by an improperly made policy.
The House of Lords proposed relatively significant amendments to the Bill in relation to judicial review but these amendments were largely rejected by the government. As such, the Act for the most part reflects the original Bill. However, a key difference is that the Act does not contain the statutory presumption in favour of suspended and prospective-only quashing orders. This means that the Courts will not need to justify making a “regular” quashing order, as opposed to a suspended quashing order or a prospective quashing order.
The Act also sets out a procedure for the introduction of a set of Online Procedure Rules with only minor amendments from the provisions contained in the original Bill.
The full Act can be found here.
