Constitutional any change? The Judicial Review and Courts Act, Brexit Freedoms Bill and a new Bill of Rights

The past few weeks have seen a number of notable developments regarding new or proposed legislation which could have a significant impact on aspects of public and administrative law. Especially:

  • The Judicial Review and Courts Act 2022 recently received Royal Assent and introduces, among other things, changes to judicial review remedies.
  • The Queen’s Speech, delivered on May 11, 2022, revealed the government’s legislative program for the coming parliamentary year, including the introduction of a Brexit Bill of Rights and Freedoms Bill which could have an impact on claims based respectively on human rights and retained European law, in the future. .

The Judicial Review and Courts Act 2022 (there “JRCA“)

On April 28, 2022, the JRCA received Royal Assent (although the relevant provisions discussed below have not yet entered into force). The JRCA will introduce a number of changes to judicial review, which we detail below. You can also hear our take on the bill here.

(i) Cancellation of orders

Section 1 of the JRCA amends the Superior Courts Act of 1981 to provide two new types of rescission orders, which may be made with or without conditions:

  • A conditional rescission order (“SCO“) which may provide that the cancellation does not take effect until a date specified in the order. The contested decision or act will be valid until that date. The purpose of having a suspension period would be to maintain certainty in a period when the initial decision is valid, while allowing the public body time to reassess its decision before the suspension date.
  • A possible annulment order (“OQP“) which may remove or limit any retroactive effect of cancellation. The effect of an OQP would be that only future acts or decisions would be affected.

To decide whether to establish an SQO or a PQO, the court to have to consider factors such as:

  • The nature and circumstances of the defect concerned;
  • Any resulting breach of good administration;
  • The interests or expectations of those who would benefit from the cancellation;
  • The interests or expectations of the persons who relied on the disputed act; and
  • Any other matter that seems relevant to the court.

Notably, the government accepted the House of Lords’ proposal to remove the presumption that an SQO or PQO should be granted where it offered adequate relief, unless there was good reason not to. TO DO. We welcome this amendment as it gives the courts greater discretion in the use of these new remedies.

(ii) Exclusion from review of a decision of the higher court to deny leave to appeal a decision of the first level court.

Section 2 of the JRCA 2022 amends the Courts, Tribunals and Law Enforcement Act 2007 by providing that where the higher court refuses leave to appeal against a decision of the first level court, this decision is described as “final and not subject to questioning or settling”. aside in any other court” (subject to certain limited exceptions). This is a legislative attempt to ensure that such a decision is not subject to judicial review. The aim was to partially overturn the decision to R (Cart) v Superior Court [2011] UKSC 28.

The Queen’s Speech

The Queen’s Speech, together with the accompanying briefing notes, provided details of legislative developments that may have an effect on the nature and/or scope of public law claims in the future.

(i) A New Bill of Rights

The government has announced plans to introduce a bill of rights which is likely to impact the approach to human rights claims in the UK in the future. This announcement is a further step in line with the government’s intention to “restore the balance of power between the legislature and the courtsby the draft Bill of Rights.

According to the briefing notes, the main elements of the bill are:

  • Establishing the primacy of UK case law, clarifying that it is not necessary to follow Strasbourg case law and that UK courts cannot interpret rights in a wider way than the Strasbourg Court.
  • Ensure that UK courts can no longer amend legislation contrary to its ordinary meaning and limit the ability of UK courts to impose ‘positive obligations’ on our public services without proper democratic oversight by restricting the scope of legislation judicial.
  • Insuring spurious cases does not undermine public confidence in human rights, so courts focus on genuine and credible human rights claims. The onus of demonstrating a material disadvantage before a human rights claim can be heard in court will rest with the claimant.
  • Recognize that responsibilities exist alongside rights by changing the way damages can be awarded in human rights claims, for example by ensuring that courts take the behavior of the claimant into account when considering to grant compensation.”

As noted in our previous blog post here, this development was heralded in the Government’s consultation to overhaul the current UK human rights regime by replacing the Human Rights Act 1998 with a new bill of rights (the “ERS ConsultingHSF’s views on the HRA consultation were discussed here and in March we published HSF’s response to the consultation.

Proposals considered in the HRA consultation included providing advice to courts on how to apply the principle of proportionality and requiring an ‘authorization stage’ for human rights complaints in order to “eliminate frivolous or unfounded complaints”. However, the extent to which specific proposals from the HRA consultation will be taken up in the draft language of the Bill of Rights remains to be seen. It is therefore unclear what precise impact any new Bill of Rights will have on the scope and approach to human rights claims, but it is possible that the impact will be significant.

(ii) The Brexit Freedoms Bill

Following the UK’s departure from the EU, the government has also announced its intention to introduce a Brexit Freedoms Bill. This could allow further deviation from EU law in the future. The stated purpose of the bill is toend the supremacy of European law and seize the benefits of Brexit“. The main elements of the bill are:

  • Create new powers to enhance the ability to amend, repeal or replace large amounts of retained EU legislation by reducing the need to always use primary legislation to do so.
  • Removing the supremacy of European law retained as it still applies in the UK.
  • Clarify the status of retained EU law in UK domestic law to reflect the fact that much of it has become law without going through full democratic scrutiny in the UK Parliament.”

The Bill therefore appears to focus on retained EU law (i.e. certain measures of EU law which have effectively been transferred into national law and ‘retained’ as UK law after the end of the Brexit transition period). This approach has been taken against a significant body of EU legislation and, according to the Queen’s Speech background paper, “the government’s review of retained EU legislation has to date identified over 1,400 pieces of secondary EU law that have been transferred into UK law.”

Proposals for the Brexit Freedoms Bill could impact public law claims based on retained EU law in the future. For example, currently, a piece of EU law retained in our national law may be similar (if not the same) in substance to the original EU law on which it was based. This means that after Brexit any claim based on this retained piece of EU law may be similar in substance to a claim which would have been based on the original EU law before Brexit. However, the Brexit Freedoms Bill seems to consider facilitating changes/replacements of retained European law. This could create the potential for greater (and perhaps more accelerated) divergence of our national law from measures of EU law.

Conclusion

Each of the developments discussed above has the potential to have far-reaching implications. Taken together, they give a strong indication of the government’s desire for parliament and the executive to ‘take back control’, whether by moving away from EU law or the influence of the European Court of Rights. human rights, or by encouraging the courts in judicial review cases to consider allowing illegal acts to remain valid at least for a certain time. It is also interesting to see another attempt to use an exclusion clause. It remains to be seen how the courts will interpret and apply these new provisions once they are included in legislation and come into force.