“Convenient but Unconvincing”: Neuberger criticises Judicial Review and Courts Bill

November 12, 2021

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3 min read

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What's going on here?

Lord Neuberger, former president of the Supreme Court, has criticised proposals included in the Judicial Review and Courts Bill. He declared, at Public Law Project’s annual conference, that “the argument that the government is concerned to protect judges from being criticised for being political is a convenient but unconvincing argument.”

What does this mean?

In July 2020, Justice Minister Edward Faulks QC was appointed to chair the Independent Review of Administrative Law (IRAL) (you can read more about this here). Following the review, the Judicial Review and Courts Bill 2021-22 was presented to the House of Commons in July 2021. It was scheduled to have its Second Reading Debate on October 2021, but this has been postponed following the murder of Sir David Amess. The Bill includes two particularly controversial clauses which relate to judicial review.  The first clause concerns quashing orders. Quashing orders are imposed by the High Court when it has found a body under review to have made a decision unlawfully. A quashing order overturns that unlawful decision and renders any actions taken under it invalid. The Bill will “provide an explicit statutory basis for courts to make suspended quashing orders”. This means that if the court was to make a quashing order but the circumstances met with one of a number of conditions, the court would be expected to make a suspended quashing order (delaying the legal effects of its judgment). Essentially, this reform will encourage courts to delay the effects of their quashing orders, granting public bodies greater flexibility.  The second clause will abolish “Cart” judicial reviews, through a legal provision known as an “ouster clause”.Cart” judicial reviews challenge a refusal from the Upper Tribunal to grant permission to appeal to the Upper Tribunal. The government argues that these “Cart” judicial reviews have very little chance of success and are often used to delay the removal of people with no right to be in the UK, if used to challenge the Immigration and Asylum Chamber of the Upper Tribunal.

What's the big picture effect?

These reforms will limit the degree to which claimants can use the judicial system to challenge the behaviour and decisions of public bodies. They will result in suspended quashing orders being made in cases where, in the past, quashing orders would have been made that would have been implemented immediately. The reforms will also limit an individual’s ability to appeal a case: the Upper Tribunal’s refusal to hear an appeal will be final. 

Reactions to the Bill have been diverse. Lord Neuberger has expressed his criticism of the reforms, saying that it was “always worth remembering” that judicial review “is what ensures that the executive arm of government keeps to the law and that individual rights are protected”’. He argued that “ouster clauses, which are intended to ensure a particular class of decision cannot be judicially reviewed, carry with them the inevitable implication that whoever has the protection of the ouster clause has the right to break the law with impunity”. However, the Attorney General, the Rt Hon Suella Braverman QC MP, has defended the government’s reforms. She spoke at Public Law Project’s annual conference, saying that it is “crucially important that we neither permit, facilitate or encourage judicial review to be used as a political tool by those who have already lost the arguments”. 

Braverman argued that the legitimacy and reputation of the judiciary is inextricably linked to its neutrality when it comes to politics. So, will these reforms help to protect the authority of our legal system, or will they simply grant public bodies greater freedom to act as they wish, by reducing the threat of legal consequences?

Report written by Elizabeth Ambrose

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