Judicial Review and Courts Bill – we get a mention, but not by name


Yesterday the Judicial Review and Courts Bill was debated in Committee. The Opposition were trying to get rid of Clause 1 which would allow, under some circumstances, judges to impose Suspended or Prospective-only Quashing Orders when a party, perhaps a party such as Wild Justice, wins a Judicial Review of a decision by a statutory body. This could mean, as we understand it, that you or we could take a legal challenge, at considerable expense, win it by persuading the courts that the public body had behaved unlawfully, but instead of getting a rapid change to matters on the ground such resolution of an unlawful state of affairs would be postponed. So you win, but nothing changes for ages.

As the coalition of countryside and environmental organisations, Wildlife and Countryside Link, say:

Judicial Review is an important tool for securing remedies for unlawful decisions which will or could harm the environment.

Clause 1 of the Judicial Review Bill introduces changes to JR that could make it impossible for claimants to secure effective remedies for unlawful decisions.

As currently drafted, clause 1 would … introduc[e] the possibility (through suspended and prospective quashing orders) that the decision could be found unlawful, but the remedy denied or delayed and harmful consequences allowed to continue.

Claimants faced with this potential outcome will be significantly less likely to invest time and money overcoming the considerable JR hurdles, for fear of wasted effort and expense. The knowledge that winning might not actually prevent the damage that prompted litigation could prevent many potential claimants from starting proceedings.


The Justice Minister, James Cartlidge MP, did his job in opposing the amendment on this subject, thus:

Amendment 1 and amendments 2 and 3, which are consequential on amendment 1, would remove one of the new tools we are proposing—namely, prospective-only quashing or quashing with limited retrospective effect. Let me remind the House of an example I have used previously of a real situation where the existence of the remedy could have been useful. It occurred when Natural England, in response to a threatened judicial review, decided to revoke general licences enabling farmers, landowners and gamekeepers to shoot pest birds. The revocation created immediate chaos for licence holders. I do not seek to re-litigate this case in the Chamber, but as I have said before, had the proposed remedies been available, Natural England may have been more willing to contest the judicial review, knowing that even if the existing licensing scheme was found to be unlawful, the court had the ability to protect past reliance on old licences. Such cases provide a tangible example of how more flexible remedies will allow courts to respond pragmatically and assist our constituents, rather than detract from their interests.

Column 910 https://hansard.parliament.uk/commons/2022-01-25/debates/7807EF40-EB32-461F-9594-9BB21B919988/JudicialReviewAndCourtsBill

That real situation was Wild Justice’s (they dare not name us, we are treated like V***emort) successful legal challenge of Natural England’s unlawful general licences – the challenge that has led the way to significant changes of general licences across the UK (and we hope there is more to come).

Read the last sentence of the Minister’s words. He’s saying that the fact that the general licences were unlawful is very inconvenient to his constituents but what he might really mean is that it is a bit inconvenient to a tiny proportion of his constituents who were using those unlawful general licences but with whom he tended to associate himself. Or, that even if the licences were unlawful then it should be possible, under the government’s proposals, to carry on the behaviours unlawfully permitted to save some gamekeepers any inconvenience. It’s a very strange example to choose, but it’s interesting that it was the best he could do, and may not be the wisest line to take for a government mired in controversy over whether laws are meant for everyone except themselves.

It’s interesting that the Justice minister suggests that in future Natural England might have taken the case to court – really? Knowing, as they did, on the basis of the strongest and clearest legal advice that their licences were unlawful? Really? And at public expense fight a doomed case? Really?

What does this government really mean by the courts ‘responding pragmatically’? It should not mean turning a blind eye to unlawfulness and allowing it to persist. But that is the message we take from the minister’s own words on why Clause 1 is such a good thing. Why is a Justice Minister arguing for continued unlawfulness rather than a rapid adoption of the law? Mr Cartlidge, are you in the right job?

Maybe the Minister should have a chat with his fellow Conservative and former Cabinet minister, David Davies MP, who said;

Judicial review is a cornerstone of British democracy. It empowers everyday people to challenge decisions made by public bodies. Whether it be central government or local authorities, rule makers are held accountable by ordinary people. This is a small, but important, check on the balance of powers in our democracy.