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Human Rights Committee recommends amendments to Judicial Review and Courts Bill

The Parliamentary Joint Committee on Human Rights has published a report calling on the Government to amend proposals in the Judicial Review and Courts Bill which have the potential to deny effective judicial remedies.

The Bill proposes changes to the courts' power to make 'quashing orders' – i.e. orders that nullify or invalidate decisions or measures made by public authorities. It would introduce a power to delay a quashing order coming into effect (a 'suspended quashing order') and a power to prevent a quashing order affecting the lawfulness of things that have already happened (a 'prospective-only quashing order'). The Committee says that use of this latter power could result in people who have already been affected by an unlawful measure, including the person bringing the judicial review claim, getting no remedy or relief. 

Of concern to the Committee is that the Bill would not merely allow the use of these powers, but actually require them to be used in certain circumstances. The Committee calls on the Government to remove this requirement as it would place an unnecessary limit on the courts' freedom to decide on the appropriate remedy to unlawful government decisions. It further calls for the legislation to be amended so that when courts consider whether to make a suspended or prospective-only quashing order they must have regard for the human rights, including the right to an effective remedy guaranteed by Article 13 of the European Convention on Human Rights, of any individual affected.

The Bill proposes to make changes to so-called 'Cart' judicial reviews that would effectively prevent claimants from using judicial review to challenge Upper Tribunal decisions to refuse permission to appeal. The Government argues that these judicial review claims are expensive and have a low success rate, however the report finds that they can provide an important protection against legal error. Given that 'Cart' judicial reviews predominantly concern immigration and asylum claims, the Joint Committee finds that their removal could result in people being wrongfully removed from the UK, putting them at risk of grave human rights violations in their country of origin. It calls on the Government to attempt procedural reform, for example extending time limits for cases to be brought, before removing a potentially crucial safeguard against tribunal errors.

In the opinion of the Committee, the proposal to remove 'Cart' judicial reviews amounts to an 'ouster clause', that would remove an area of decision making from review by the courts. Joint Committee is additionally concerned by suggestions from the Government that they would use a similar approach in other areas of legislation in the future. The Joint Committee finds that this could significantly undermine judicial review of public bodies and weaken a crucial mechanism for enforcing rights. It warns the Government to exercise great caution in the use of ouster clauses to ensure that accountability is maintained and human rights protected.

For the full report, click here. For a summary, click here. For the report's conclusions and recommendations, click here.

11/12/21