The bill, first introduced in parliament in July 2021, aims to reform the remedies available to judges in judicial reviews, in particular the setting aside of orders.
It has proven hugely unpopular with environmental and legal commentators, and according to reports in The Times this week, the government may consider shelving some of its reforms in the Queen’s Speech in May.
As the law currently stands, when a case goes to judicial review, a judge can issue a reversal order that reverses any previous decision that a court has found illegal and applies retroactively as well as in the future.
When it first entered the House of Lords, the bill proposed that the courts should grant a presumption to suspended dismissal orders (SQOs), which would suspend the effect of the order at a later date, and prospective rescission orders (PQO), which would render inadmissible decisions illegal, but consider their past use valid.
However, following a debate in the House of Lords on March 31, the Peers voted in favor of amendments to remove this presumption, despite government opposition.
Dr Richard Benwell, chief executive of Wildlife and Countryside Link (WCL), said the House of Lords was “right to withdraw the proposal” and that the government should take action to improve citizens’ access to environmental legal proceedings , “without limiting the ability of the courts to deliver effective environmental justice”.
Speaking to ENDS in her capacity as Senior Counsel to the RSPB, Carole Day added that if the government really rethinks its proposals for judicial review reform she wouldn’t be surprised.
“None of these proposals [for a presumption in favour of SQOs and PQOs] won the support of the Independent Review of Administrative Law, which was a massive undertaking, [involving a] panel of experts and lots of evidence,” she said. “I think that’s why the government has gotten into such trouble because there are huge questions [around] Rule of law and compliance with international commitments.
In a WCL briefing ahead of the Lords debate, the coalition group argued that SQOs and PQOs would undermine the UK’s compliance with the Aarhus Convention, which requires parties to provide legal review mechanisms providing “adequate and effective remedies, including injunctive relief where appropriate, and being fair, equitable, expeditious and not prohibitively expensive”.
The group says that in many cases the imposition of an SQO and the resulting delay between the finding of an illegal decision and its reversal are “unlikely to be considered expedient”.
Day said another outstanding issue with the PQOs in particular was that there was “not really flesh on the bones as to how it would apply in environmental affairs”, not knowing exactly how. they are supposed to work.
As an example, Day said there was no clarity on what it would mean for a PQO to apply to a decision made by a Secretary of State on a Development Consent Order (DCO ), such as the case last year when the High Court overturned a government decision to build a two-mile tunnel under Stonehenge.
“What does that mean? Is it hitting the DCO or not?” she said, adding that the campaign had been unable to get clarification on the matter. from ministers.
According to Day, in the current state of environmental judicial review cases, only about 4% are decided in favor of the plaintiff. If dismissal orders are weakened, she says, it will make plaintiffs much less likely to sue.
“It’s hard enough before you actually think you could go for it and you might not even get the cure you’re looking for. So if you’re going to challenge Stonehenge, and you’re not going to potentially get a restraining order, well, why would anyone? ” she says.
The bill will now return to MPs in the lower house, who will either accept or reject the amendments. She is due to be heard on April 21 after the Easter holidays.