The PED requires that equality considerations be taken into account before the relevant decision is made. Over the past decade, there has been a huge growth in judicial review litigation in which the policy has been challenged for its alleged non-compliance with the FSED. The ability to suspend rescission orders could encourage courts to take a tougher stance on public bodies fulfilling a procedural obligation, while giving them a second chance to comply and preserve substantive policy.
Another interesting aspect will be whether the law leads to legislative changes in other areas.
For example, public procurement may be subject to applications for judicial review where the relevant cause of action does not exist under applicable regulatory instruments such as the Public Procurement Regulations 2015. These regulations authorize an order of annulment but not a suspended annulment order. A court faced with a procurement claim brought under judicial review may therefore have greater latitude than a court faced with a procurement claim brought under the Regulation on public markets.
Section 2 of the Act removes the Administrative Court’s “Cart” jurisdiction for judicial reviews – these are essentially appeals of certain decisions of the Upper Tribunal. The primary impact of this provision will be on immigration cases beginning in the court system. This new limit on the court’s jurisdiction is likely to be the subject of a legal challenge after concerns were raised that the provisions restrict access to justice. As a result, it remains to be seen whether it will have the desired effect.
Other procedural changes for judicial review that the government consulted on in 2021 related to time limits for filing claims, multi-track timetables and a claimant’s right of reply. These have been widely welcomed in principle, although further detail is needed on some. It is expected that the Rules of Civil Procedure Committee will consider them further in the coming year.