The Lord Chancellor, Robert Buckland launched a consultation last week, ‘Judicial review: proposals for reform’. In line with the recommendation of the independent panel led by Lord Faulks, it proposes banning judicial review of Upper Tribunal appeals (reversing Cart [2011] UKSC 28) and introducing suspended quashing orders as a new remedy where government errors are found to have taken place―currently, quashing orders take immediate effect.
Buckland also proposed increasing clarity on ouster clauses (a clause rendering a decision or power non-justiciable), giving judges discretion to make remedies ‘prospective-only’ and clarifying the principles on how the courts declare decisions null and void.
Responses to the consultation must be made by 29 April.
David Greene, former Law Society president, said: ‘Removing the option of recourse to judicial review in any area, let alone one as complex as immigration, risks injustice – as the government itself acknowledges – not only for those people whom the court would have found in favour of, but also for the much larger number of cases where settlement is achieved only under the threat of judicial review, which are not reflected in the panel’s figures.’
He said the government had ‘added additional proposals that go beyond the panel recommendations, some of which risk undermining the effectiveness of judicial review’.
Derek Sweeting QC, Bar Council Chair, said: ‘Whilst there is always room for sensible adjustments and reform, the number of judicial reviews in all areas (including immigration) has been falling over recent years.
‘Outcomes show that across the board, of those cases which proceeded to a substantive hearing, the success rate for claimants between 2014 and 2019 ranged from 39% to 44%, and the reality is that the judicial review process already includes safeguards, including a filter mechanism to ensure that cases which lack merit do not proceed.’
The Faulks panel reported that it was ‘well aware that there have been occasions when, in the words of Professor Varuhas, the courts may be thought to have gone “beyond a supervisory approach”’.
