Reform of judicial review | The bar

The UK has a long and proud history of upholding the rule of law. This means that everyone, including the government, must comply with the law.

Judicial review is an essential part of the judicial system in England and Wales. It’s a way for people to:

  • assert their fundamental rights
  • test the legality of decisions taken by public bodies
  • look for a cure when things go wrong

Judicial review is an important part of our constitutional balance of powers between the executive, parliament and the judiciary.

It is a way of defending the sovereignty of Parliament and maintaining confidence in the government’s decision-making process.

Hear Joe and Lucy talk about their experiences using judicial review

Judicial Review and Courts Act

The government introduced the Judicial Review and Tribunals Bill in July 2021. It received Royal Assent and became law on April 28, 2022.

The Judicial Review and Courts Act amends judicial review by:

  • give courts the power to grant conditional and only prospective rescission orders
  • overturn the judgment R (Cart) v. Superior Court so that the decisions of the Upper Tribunal can no longer be subject to judicial review

It also makes a number of procedural changes throughout the justice system.

Our point of view

Throughout the legislative passage of the Judicial Review and Tribunals Act, we have engaged with parliamentarians to ensure that the voice of lawyers is heard.

This resulted in the removal of a proposed legal presumption from the final law. The presumption would have required judges to broadly grant the new suspended and prospective rescission orders.

Removing the presumption was a major victory and the result of almost two years of campaigning and commitment. We believe it improves the law by maintaining judicial discretion in granting remedies. It also reduces the potential for negative impacts from new remedies.

However, the law still makes significant changes to:

  • the remedies that are available following a successful case, and
  • what can be challenged in a judicial review case

Suspended cancellation orders

The courts’ new power to suspend an order to set aside allows the order to take effect at a later date.

We believe that this new remedy, if used in exceptional cases, will improve flexibility and balance the interests of plaintiffs and defendants in the allocation of judicial review remedies.

Prospective-Only Void Orders

A prospective-only rescission order prevents a decision or action of a public body from applying in the future, which means that it only applies to events that happened before the judgment of the court.

Accordingly, any prior use of the rulings, although found to be unlawful, would be upheld.

We remain concerned that this may prevent a successful plaintiff, and anyone else affected by the illegal decision, from having a full remedy.

However, by leaving their use to the discretion of judges, we hope that orders will only be used where strictly necessary and in a way that does not unfairly disadvantage the plaintiff.

Withdrawal of Upper Tribunal decisions from judicial review

A decision of the Upper Tribunal can no longer be subject to judicial review.

We remain concerned that important points of law or procedural fairness, which would otherwise have been considered by the High Court, may be left unaddressed.

What we do

April 2022 – we engaged with the government, obtaining agreement to remove the legal presumption from the Bill, and the Bill received Royal Assent

April 2022 – we raised our concerns with the UN in a submission to the UK’s Universal Periodic Review (PDF 270 KB)

February 2022 – we organize a parliamentary briefing before the second reading in the House of Lords

January 2022 – we heard from members of the public about the power of judicial review and their experiences with the process

October 2021 – we organize a parliamentary briefing before second reading in the House of Commons

April 2021 – we responded to the consultation on the judicial review reforms of the Ministry of Justice

October 2020 – we responded to the Independent Administrative Law Review’s call for evidence on a range of aspects of judicial review

September 2020 – we hosted a roundtable of expert lawyers to discuss the terms of reference for the Independent Administrative Law Review and develop our list of core principles

To be involved

We will monitor the effects of the law on judicial review and the courts to ensure that any negative consequences are brought to the attention of lawmakers.

If you have represented a client for whom one of the new measures has raised concerns, email our Policy Advisor Hazel Blake.