The Judicial Review and Courts Act 2022

Ministers have not taken kindly to losing cases or even to being challenged. There have been attacks on “lefty lawyers” and allegations that judges have overreached. Two of the most notorious judicial reviews to go against the government were related to Brexit, on whether it could trigger article 50 and the prorogation of parliament respectively. More recently, it has been angry about the challenge to its policy to send some migrants to Rwanda. 

The stated aim of the Judicial Review and Courts Act was to create a more even balance between the powers of government, parliament and the law courts. The act made two key changes to the rules surrounding judicial review. The first change was to the way in which quashing orders can be used by judges. A quashing order (formerly a writ of certiorari) nullifies a decision which has been made by a public body. The effect is to make the decision completely invalid. Such an order is usually made where an authority has acted outside the scope of its powers (ultra vires). The most common order made in successful judicial review proceedings is a quashing order. If the court makes a quashing order it can send the case back to the original decision maker directing it to remake the decision in light of the court’s findings. 

The passing of the Judicial Review and Courts Act gives judges more choice about how they apply quashing orders. For example, quashing orders no longer have to have immediate effect. The act gives judges the ability to suspend a quashing order by announcing that it will be introduced at some point in the future. These so-called suspended quashing orders give a public authority time to make changes to the way it operates. This puts the public authority in control of its response to a ruling that it has acted unlawfully. At the same time, it allows judges to show that they trust the public authority to take the right action to ensure that its future conduct is lawful.

Another difference in the way in which quashing orders can now be used allows judges to require public bodies to change how they operate in future but without declaring any of their past actions illegal. The Johnson government hoped that this new power would prevent situations such as that which followed the judicial review ruling of 2013 that fining benefit claimants for refusing to do unpaid work was unlawful. As a result of this ruling, the government changed the law to make the past fines legal. ( R. (Reilly) v Secretary of State for Work and Pensions (2016) )

Today, judges would be able to rule that fines already imposed were lawful but that no further fines should be handed out.

The second main change brought about by the Judicial Review and Courts Act was the removal of what were known at ‘Cart judicial reviews’. These allowed for a re-examination of decisions made by Upper Tribunals, courts which deal with disputes over employment practices, asylum cases, visa applications and requests from those wanting to come to or stay in the UK. Now decisions made by Upper Tribunals will be considered permanent. This means that no other court will have the power to review them. This change to the law was made primarily to reduce the amount of court time spent processing asylum and immigration cases.

The effect of the Judicial Review Act is most likely to result in a further fall in judicial review cases, which have been declining steadily since reforms enacted by the Cameron government in 2015. In the first quarter of 2022 there were 550 judicial review cases, 9% down on the first quarter of 2021 and 40% fewer than in the first quarter of 2019. Any further fall in judicial review cases will almost certainly be a result of the abolition of Cart judicial reviews.

The legal profession is unhappy about the ending of Cart judicial reviews. The Law Society has suggested that a legal challenge may be mounted against the change, on the grounds that it could deny people access to justice. The 2022 Supreme Court case Basfar v Wong provides a useful example here. Josephine Wong is a Filipina national who was trafficked to the UK and forced to work in the household of Saudi Arabian diplomat Khalid Basfar. Wong’s initial claim against Basfar was rejected by an employment tribunal but she was allowed to appeal her case to the Supreme Court. The latter found in her favour, ruling that Mr Basfar had denied her both fair wages and employment rights. The end of Cart judicial reviews means that Ms Wong’s case would not now reach the Supreme Court, denying her the justice our most senior judges felt she deserved. 

In its original form, the Judicial Review and Courts bill proposed that judges would only be able to use suspended quashing orders. This proposal drew opposition from the Law Society, the House of Lords, opposition parties in the House of Commons and some Conservative backbenchers, including former home secretary David Davis. A concerted campaign was mounted against the proposal.

Those objecting to the change pointed out that it would have restricted the ability of judges to choose how to use quashing orders.The all-party parliamentary group on democracy and the constitution (APPGDC) accused ministers of acting in a “constitutionally unhelpful and inappropriate manner” by questioning the legitimacy of judges The government eventually bowed to the pressure, with the result that judges now have more options than before about how to implement quashing orders. The Law Society declared this to be a major victory for the rule of law in the UK.

The proportion of civil judicial reviews in England and Wales, excluding immigration cases, which claimants won out of total claims lodged fell by 50% on 2020, according to analysis seen by the Guardian. The figure is 26% if the success rate is measured out of cases that went to a final hearing.

The fall took place against a background of criticism by ministers. The attorney general, Suella Braverman, before taking office railed against “chronic and steady encroachment by … judges” and last year said in some cases they had “strained the principle of parliamentary sovereignty”. The lord chancellor, Dominic Raab, has warned judges against “harpooning” government infrastructure projects.