The government’s controversial reforms of judicial review face significant amendments in the House of Lords after peers raised concerns about the ‘new remedies’ available to courts and the abolition of certain appeals from the upper tribunal.
Justice minister Lord Wolfson said the Judicial Review and Courts Bill’s introduction of suspended or ‘prospective-only’ quashing orders when a public authority’s decision is found to be unlawful will put ‘two new tools in the judicial toolbox’ at the bill’s second reading on Monday evening.
He also said the removal of the Cart jurisdiction, named after a 2011 Supreme Court decision, through an ‘ouster clause’ preventing the review of the upper tribunal’s permission to appeal decisions, was ‘entirely appropriate’. ‘Parliament has a role – indeed, I would say, a duty – to intervene when the law takes a wrong turn,’ Wolfson said.
Labour opposes the judicial review reforms, with shadow minister Lord Ponsonby telling peers that ‘the Ministry of Justice is trying to fix something which is not broken’. He also raised concern that ‘the government will use abolishing Cart as a precedent to abolish other types of judicial review’.
The proposed changes, which will now be considered line by line at committee stage, were welcomed by Lord Faulks, the chair of the Independent Review of Administrative Law (IRLA), and former Supreme Court justices Lords Brown and Hope – both of whom heard Cart.
Brown also suggested that suspended orders could make the courts ‘readier to find flaws in decisions impugned … if in doing so they would then avoid the administrative chaos’ that follows from quashing decisions.
However, leading public law silk Lord Pannick warned that suspended quashing orders gave the judiciary ‘a remarkable power’, meaning ‘people who have suffered loss, damage, by reason of an unlawful government action would be denied compensation or damages for that wrong’.
He said that ‘to give the judge a discretion to say that what was unlawful shall be treated as lawful is to encourage judges to enter into very treacherous waters’, adding: ‘The minister rightly emphasised that judicial review is not concerned with judges deciding the merits of a decision or a policy. This new power will encourage and require judges to do precisely that.’
Lord Etherton, a former master of the rolls, predicted that the mandatory provisions in the bill relating to quashing orders would unleash ‘a plethora of satellite litigation and appeals’.
He suggested ‘a middle course’ in relation to the Cart jurisdiction, recommending that the High Court retain the judicial review jurisdiction ‘but provide that there shall be no appeal to the Court of Appeal from either the refusal of permission … or an unsuccessful substantive application’.
Etherton said he would also propose an amendment ‘to enable tribunals … to order an unsuccessful, legally represented party to pay pro bono costs to the Access to Justice Foundation, where the successful party has been represented pro bono’ – a suggestion Wolfson said the government accepted in principle.
Shadow attorney general Baroness Chakrabati said the government is ‘attempting to bind the hands of courts with a presumption towards prospective-only quashing orders’.
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