Judicial Review And Courts Act 2022

Commentary on provisions of Act

Part 1: Judicial review

Section 1: Quashing orders

85. This section grants the courts a new power in Judicial Review by way of amendment to the Senior Courts Act 1981. The provisions are concerned with suspending or altering the effects of quashing orders.
86. Subsection (1) of section 1 inserts a new section 29A to the Senior Courts Act 1981.
87. The new section 29A(1)(a) deals with suspension: that the quashing order does not take effect until a date specified in the order, to be specified by the court. Subsection (7) of new section 29A makes further provision that section 29(2) of the Senior Courts Act 1981 does not prevent the ability of the court to vary the date specified for the suspension.
88. Subsection (1)(b) of new section 29A deals with the permanent limitation of the retrospective effects of a quashing order, from some point in the past or future. It provides courts with power to remove or limit any retrospective effect of the quashing. Subsection (1)(a) and (b) of new section 29A may be used independently or cumulatively.
89. New section 29A, subsection (2), provides that in using the powers in subsection (1), the court may make that order subject to conditions. The section provides no limit or prescription on the type or nature of the conditions, leaving this determination to the court.
90. Subsections (3), (4), and (5) of new section 29A deal with the effects of these powers on a decision found to be invalid. The case Ahmed v HM Treasury (No2) [2010] UKSC 1 found that suspending a quashing order would be of no effect and in fact pointless, as the performative aspect of the court’s judgment was the finding of invalidity due to the decision in question being ultra vires. A quashing order would be merely declaratory. It was the fact in that case that the decision was ultra vires which deprived it of legal effect, not the quashing order.
91. To address this point, subsection (3) of new section 29A provides that using the power under subsection (1)(a) means that the impugned act in question may be treated as valid for all purposes (subject to any conditions imposed by virtue of subsection (2)) until the quashing takes effect. Suspending the effects of the quashing order in this way creates another effect – for an act found to be invalid, to be treated as if it were valid, until the quashing order comes into effect at the end of the period of suspension. Subsection (6) of new section 29A clarifies what happens when the quashing order comes into effect, confirming that the act in question would henceforth be treated as void ab initio, and what was treated as valid during the period of suspension would at that point not be so treated. This does not preclude the possibility of the court also setting a limit on the retrospective effect, by also using the power in subsection (1)(b).
92. Subsection (4) of new section 29A sets out the implications in circumstances where the power in subsection (1)(b) is used. In this instance the use of that power means that the decision or act in question is to be treated as valid for all retrospective purposes for which the quashing order does not apply. This means, for example, that any decisions or actions taken under the impugned act before it is quashed may permanently be treated as valid even after the act is quashed (subject to any conditions imposed by virtue of subsection (2)).
93. Subsection (5) of new section 29A provides that where the action or decision in question is upheld by virtue of section 29A(3) or (4), it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect. Relevant defect is defined in subsection (11) as "the defect, failure or other matter on the ground of which the court is making the order". Subsection (5) therefore does not prevent defects, failures or other matters which are not the subject of the order from having an effect on the validity of the impugned act.

    Example (1): Effect of suspended relief The court finds a decision by a public body to create a regime for issuing certain licenses to be invalid. This does not prevent the court from issuing a quashing order which is suspended for 30 days on condition that no new licenses are issued. This means that licenses issued already would be treated as valid for the 30 days. A person who had been issued a license would need to prepare for that license to be invalid, but could continue to rely on it for the 30 days. The public body would also have time to put in place transitional arrangements, set up a new licensing regime, or take any other action considered necessary. Example (2): Effect of prospective relief The Government passes secondary legislation which establishes a licensing regime for the sale of certain medical devices to hospitals. After a time, in which this regulation has been widely used, it is challenged and found to be unlawful in part. Due to the issuing of many licenses already, the court decides to quash the regulation prospectively. This means that no further licenses could be issued, but those previously issued would remain valid. This would prevent administrative chaos. Retrospective quashing may have caused sudden disruption to supply chains, or severe financial consequences for businesses who would not be able to continue providing that service. The Government would be in a position to assess the situation and make any new regulations deemed necessary. Example (3): Effect of suspended and prospective relief The court finds a decision by a public body to authorise and set in motion a process for assessing and developing potential sites for infrastructure projects, to be unlawful on the ground of failure to take into account a necessary consideration. The court has the power to suspend or make prospective the relief it grants. Immediate and retrospective quashing would mean ongoing actions pursuant to that decision would be invalid. The court decides to suspend its quashing order for three months, and that it would come into effect prospectively from that point on condition that any work ceases until the public body exercises its powers to amend its decision. The public body is thus afforded a chance to re-assess its decision in light of the consideration it had previously not accounted for. Before the three month suspension expires it makes minor alterations to its decision, and the work proceeds with minimal delay. Actions, such as award of contracts which were taken pursuant to the original decision, insofar as they are unaltered by the new decision, are treated as valid.

94. Subsection (8) of new section 29A provides that the courts must have regard to certain factors in deciding whether to exercise their powers under subsection (1). This subsection guides a court’s considerations towards the use of the powers under subsection (1). The list provided is non-exhaustive and does not constrain the court’s discretion to consider other relevant factors, as made explicit in subsection (8)(f).
    1. The first factor (8)(a) addresses what kind of error is in question. The fact that an error may be technical or minor, or is more substantive, or fatally undermines the entire decision in question is relevant to determining whether to suspend or alter the retrospective effect of a quashing order. Similarly, the court could have regard to whether the decision maker had acted outside their actual jurisdiction or permitted field of activity.
    2. The second factor addresses the potentially disproportionate effects of exercising or failing to exercise the new power on public administration. Such consequences might include economic or financial instability resulting from the immediate quashing of a regulation, or the public authority being in a position where it had to immediately set up new arrangements, or pay compensation, or reverse actions taken pursuant to the quashed decision.
    3. The third factor pertains to the interests of the claimant or third parties who would benefit from an act being quashed with immediate effect. The court would consider whether the interests of justice required those persons be given immediate relief, for instance if suspending or limiting relief would cause prejudice to their rights in tort or contract, rights under the Human Rights Act 1998, or their ability to raise a defence in criminal proceedings, or would deny the claimant an effective remedy.
    4. The fourth factor pertains to third parties who may have relied or are relying on the act in question in good faith that it was lawfully made. Their interests may be at stake if they were suddenly unable to conduct their business for instance, as it relied on a certain licence which was quashed retrospectively.
    5. The fifth factor addresses a situation where the defendant (or some other person with responsibility over the act in question) has taken any action or proposes to take action or made undertakings to the court. This may concern actions to rectify any unlawfulness, or review a decision in light of the court’s judgment. They may include representations that the case is constitutionally significant and contentious, and warrants Parliament being given an opportunity to pass emergency legislation, if the Government proposes to bring forward such legislation.
    6. Paragraph (f) makes provision that the court can consider any other factors it deems relevant.
95. Subsection (9) of new section 29A defines certain terms used in the section. Including "(purported thing)" as part of the definition of "impugned act" means that the court has the power to use these remedies and that the remedies take effect in the manner set out in the section, regardless of any effect of "nullity". Nullity is the concept whereby what was considered by the decision maker to be an action with effect in law, when found to be invalid, is revealed as an action that does not and did not have effect in law, and thus it was no action (in a legal sense) at all. Therefore, even when a court considers a decision to be a nullity, the powers in subsection (1) are available.
96. The definition of "relevant defect" in subsection (9) of new section 29A is "the defect, failure or other matter on the ground of which the court is making the quashing order".
97. Subsection (2) of section 1 updates the power to remit in the Senior Courts Act 1981 to ensure it is compatible with the new remedial powers in subsection (1) of new section 29A. This ensures that the court, as well as using any of the powers in subsection (1) of new section 29A, can remit the decision back to the decision maker so that a fresh decision can be reached.
98. Subsection (3) of section 1 makes consequential amendments to the Tribunals Courts and Enforcement Act (TCEA) 2007. The tribunals operating under the TCEA have a judicial review jurisdiction, which currently functions (in relation to cases arising under the law of England and Wales) in broadly the same way as the Judicial Review jurisdiction of the High Court of England and Wales. To maintain this arrangement, this amendment provides the Upper Tribunal with the same powers as set out in new section 29A of the Senior Courts Act 1981 and makes a further consequential change on remittance.
99. Subsection (4) of section 1 provides that the powers in section 1 will be available in respect of proceedings commenced on the day of or after commencement of these provisions.

Section 2: Exclusion of review of Upper Tribunal’s permission-to-appeal decisions

100. This section makes certain decisions of the Upper Tribunal final, and stipulates that they are not subject to review by any other court. This will operate subject to certain exceptions.
101. Subsection (1) inserts a new section 11A into the Tribunals, Courts and Enforcement Act 2007 ("TCEA 2007").
102. Subsection (1) of the new section 11A sets out which decisions of the Upper Tribunal are affected by this section. The section will only apply to decisions by the Upper Tribunal to refuse permission to appeal further to applications under Section 11(4)(b) of the TCEA 2007. This means that the following decisions are not affected by the section:
     1. decisions of the Upper Tribunal in relation to applications for permission (or leave) to appeal from bodies other than the First-tier Tribunal;
     2. decisions of the Upper Tribunal which do not relate to applications for permission (or leave) to appeal under section 11(4)(b).
103. Subsection (2) of the new section 11A provides that no other court can question or set aside the Upper Tribunal’s decision about permission (or leave) to appeal. It should be noted that subsection (7) of new section 11A defines "decisions" as including "purported decisions’". This means that even decisions which might otherwise be regarded as a nullity, are caught by the new section.
104. Subsection (3) of new section 11A re-iterates and further clarifies the extent of the rule. Subsection (3)(a) provides that, if the Upper Tribunal were to make an error in reaching its decision on permission (or leave) to appeal, this does not mean that the Upper Tribunal has acted beyond its powers. Such decisions will therefore still be caught by the rule. Subsection (3)(b) emphasises the effect of subsection (2) in preventing the making of an application to a court of supervisory jurisdiction about the decision, as the jurisdiction of that court does not extend to these decisions.
105. Subsection (4) of the new section 11A provides for specific exceptions to subsections (2) and (3), that is, certain circumstances where a challenge can still be brought against decisions of the Upper Tribunal on applications for permission (or leave) to appeal. This includes where the Upper Tribunal did not have jurisdiction, whether because it did not have before it a valid application under section 11(4)(b) (subsection (4)(a)), or because the Tribunal itself was not properly constituted to carry out its task (subsection (4)(b)). Subsection (4)(c) covers circumstances where the Upper Tribunal acted in bad faith or in such procedurally defective ways as amounts to fundamental breaches of the principles of natural justice. Fundamental breaches of the principles of natural justice include such things as the decision being affected by bias or corruption. All these scenarios would be very unlikely to arise, but it is important to ensure that such decisions would still be subject to review.
106. Subsection (5) of new section 11A makes provision for an exception in cases where the First-tier Tribunal’s jurisdiction over the underlying matter in question was or could have been created by an Act of the Scottish Parliament or an Act of the Northern Ireland Assembly passed without consent of the Secretary of State. This means that Upper Tribunal decisions about permission (or leave) to appeal are reviewable when the underlying decision, considered by the First-tier Tribunal, is a kind of decision, provision about which would be within legislative competence of the Scottish Parliament or Northern Ireland Assembly.
107. Subsection (6) of the new section 11A clarifies that nothing in the section affects the normal position in regards to judicial review challenges to substantive decisions of the First-tier Tribunal. The subsection means that the court of supervisory jurisdiction should not alter its standard approach of refusing permission to bring a judicial review of an inferior court or tribunal’s decision, where an alternative remedy exists. Nothing in the section changes the fact that an alternative remedy (i.e. application for permission or leave to appeal to the Upper Tribunal) is available in relation to substantive decisions of the First-tier Tribunal.
108. Subsection (7) of the new section 11A defines "decision" for the purposes of this section, so that it includes "purported decision" meaning that regardless of whether a decision is a nullity, the provisions in this section still apply. "The supervisory jurisdiction" is also defined, making clear to which courts this refers.
109. Subsection (2) of the section sets out the transitional arrangements for new section 11A, and provides that decisions of the Upper Tribunal made before the section comes into force are not affected.

     Example (1): Review of the Upper Tribunal not permitted A claimant fails in a claim before the First-tier Tribunal. The claim relates to a non-devolved matter. The claimant applies to the First-tier Tribunal for permission to appeal the decision to the Upper Tribunal. The First-tier Tribunal refuses permission. The claimant then makes a valid application for permission to appeal directly to the Upper Tribunal under section 11(4)(b) of the TCEA 2007. The Upper Tribunal, properly constituted, refuses permission to appeal. The claimant thinks the Upper Tribunal’s decision was wrong. The Upper Tribunal did not act in bad faith, or fundamentally breach the principles of natural justice. The effect of this section is that the claimant cannot seek to challenge the Upper Tribunal’s decision in any court, including by way of an application for judicial review. Example (2): Review of the Upper Tribunal permitted A claimant fails in a claim before the First-tier Tribunal. The claim relates to a non-devolved matter. The claimant applies to the First-tier Tribunal for permission to appeal to the Upper Tribunal. The First-tier Tribunal refuses permission. The claimant then makes a valid application for permission to appeal directly to the Upper Tribunal under section (11)(4)(b) of the TCEA 2007. The Upper Tribunal, properly constituted, refuses permission to appeal. In the course of adjudicating on the application, the Upper Tribunal judge refuses to hear submissions from the claimant for no good reason. The effect of this section is that the claimant can seek to challenge the Upper Tribunal’s decision in another court, including by way of an application for judicial review, because the Upper Tribunal acted in such a procedurally defective way as amounts to a fundamental breach of the principles of natural justice.