The Judicial Review and Courts Bill: how much space is left for the rule of law?

By: Tevž Sitar


The Judicial Review and Courts Bill was laid before Parliament in July 2021 and is currently at the Report stage in the House of Commons. It represents the most recent reform intended to improve administrative efficiency in the judicial review system. Unfortunately, it will simultaneously damage fundamental common law principles, in particular the rule of law and the effective exercise of judicial checks on the executive branch.

This article will analyse Part I of the bill by focusing on the effects of suspended quashing orders and the reversal of Cart litigation. No changes have been made to this part of the bill so far.

Quashing orders

Part I, s 1 of the bill would upgrade quashing orders with the effect of temporary suspension. The provision states that:

‘a quashing order may include provision (a) for the quashing not to take effect until a date specified in the order, or (b) removing or limiting any retrospective effect of the quashing’.[1]

The provision would require the court to suspend a quashing order if a decision under judicial review was found to be made ultra vires or in breach of natural justice. The government would then get the opportunity to modify its initial decision during the period of suspension, which would certainly contribute to administrative flexibility.[2] Correcting the decision would lower the risk of repeating ultra vires decision-making in future. Moreover, the suspending effect would improve administrative efficiency and fairness – the outcome of the judicial review would not create a legal vacuum by quashing the unlawful decision, but would instead incentivise the government to make a new, corrected decision, thus providing the claimant with legal certainty.

However, the provision also presents a major concern for the rule of law, namely restraint on government power. During the period of suspension, the government could modify the ultra vires decision in different ways. The government explicitly indicated in its consultation paper that an erroneous decision could be corrected by proposing to Parliament a piece of primary legislation which would, post-enactment, render a decision clearly labelled by the court as unlawful, lawful.[3] This kind of exercise of executive power could damage the state of the rule of law in the UK – calling on Parliament to legislate to make something that was previously unlawful, lawful, solely because it fulfils the executive’s wishes, brings a constitutional democracy dangerously close to an elective dictatorship’, to use Lord Hailsham’s well-known phrase.[4]

While the executive’s decisions are of course open to judicial review, the doctrine of parliamentary sovereignty means the courts cannot overturn an Act of Parliament; therefore Parliament, as a supreme legislator, cannot be controlled by the judiciary.[5] However, in the Westminster model, the party with a parliamentary majority nearly always forms the government of the day, which consequently guarantees a considerable degree of executive control over the House of Commons.[6] The scenario where Parliament passes an Act in order to render a previously unlawful decision of the executive lawful would radically change the optics of the balance of power. It would unambiguously transfer legislative sovereignty to the executive and would, contrary to the constitutional principle of parliamentary supremacy, effectively place Parliament in a subservient position to the executive. The degree to which the exercise of legislative power by the executive is legitimate would vary from uncontentious technical modifications[7] to alterations of the common law-based principles of natural justice which are essential for strong judicial review. Whilst this argument does not suggest that the executive would necessarily exercise both functions in a dictatorial fashion, the optics of the government using Parliament to override the courts’ decisions so conspicuously is just as harmful to the state of the rule of law.

The reversal of Cart

The bill contains another constitutionally significant reform – the reversal of Cart litigation and the exclusion of the High Court’s supervisory jurisdiction over the Tribunal system.

Section 2(1)(2), with regard to the Upper Tribunal’s permission-to-appeal decision, states that this ‘decision is final, and not liable to be questioned or set aside in any other court’.[8]

The Tribunals, Courts and Enforcement Act 2007 delegated appellate and supervisory jurisdiction over the First-tier Tribunal to the Upper Tribunal, which consequently became the ‘superior court of record’.[9] The Supreme Court’s holding in Cart recognised that Tribunals function within a separate framework and have jurisdiction over a determined area of cases that should not be interfered with by the High Court.[10] However, it retained the High Court’s supervisory power in exceptional circumstances. Applying the so-called second-tier appeal criteria, if the Upper Tribunal denied permission to appeal the First-tier Tribunal’s decision on an important point of principle or practice, or where some other compelling reason existed to hear the appeal, the Tribunal’s decision would be amenable to the supervisory jurisdiction of the High Court.[11]

The government justified the reversal of Cart judicial review with an efficiency argument,[12] claiming that resources are being disproportionately allocated to the Cart mechanism relative to its effectiveness, with the success rate at 0.22 per cent and, after re-evaluation, 3 per cent.[13] However, according to Tomlinson and Pickup, the Independent Review of Administrative Law Panel, which provided the evidence of Cart’s ineffectiveness, selected an evaluative method of questionable accuracy – but one that fits neatly into the government’s argumentation against Cart. There were 5502 applications for Cart judicial review, of which only 12 cases were officially successful. Solely utilising this data, the Panel found that only 0.22 per cent of all applications were successful.[14] Nevertheless, official reports or transcripts were accessible in only 45 (out of 5502) cases. Tomlinson and Pickup thus proposed that, for an accurate picture, the percentage should be obtained by using the number of positive results from cases with recorded results, since we cannot simply deduce that all the 5457 cases without official reports resulted in a negative outcome. This makes the approximate percentage of successful cases much higher – at around 26.7 per cent – and the government’s argument unsubstantiated.

Interestingly, the government based the discontinuation of Cart on arguments that were already rejected in the Cart judgment itself.[15] While the government argued that there is an excessive influx of Cart challenges, the Court’s reasoning in Cart introduced second-tier appeal criteria in permission-to-appeal cases with the very aim of restricting them.[16] The Court acknowledged that the availability of judicial review in Tribunal cases must be limited to avoid a floodgate of challenges. Second-tier appeal criteria, as opposed to the mere arguability test, seemed sufficiently stringent to limit the cases.[17] The effectiveness of the Cart criteria’s filtering function was demonstrated throughout the decade after Cart. [18] Cases like Essa,[19] HS,[20] Ground Rents[21] and AA (Iran)[22] illustrate that the courts understand the need to proportionately limit judicial review of Tribunal decisions and recognise the filtering role of the second-tier appeal criteria put forward in Cart. The government’s consultation paper failed to mention the role and effects of the second-tier appeal criteria but still reached the conclusion that Cart challenges must be discontinued.[23]

Even more importantly than the success rate, the extinguishment of the Administrative Court’s supervisory jurisdiction, as established in Cart, will have damaging repercussions for the rule of law. Firstly, as asserted by Baroness Hale, since every judge is at a risk of making mistakes, there should be a chance for another judge to reconsider the decision.[24] The overturning of Cart would prevent any kind of reconsideration of the refusal to grant permission-to-appeal. While Baroness Hale also pointed out that there should not be an infinite possibility for further appeals,[25] this is not the case in Cart judicial reviews as the second-tier appeal criteria filter the cases at permission stage, dismissing the less significant cases while permitting judicial review where a general point of principle or practice was in question. Furthermore, as the Tribunals’ decisions would not be channelled into the legal system through the Administrative Court, the judiciary would be disabled from providing authoritative guidance on case-law principles. The occurrence of incorrect and ‘local law’[26] in the Tribunal system would detrimentally affect the development of common law. Blocking all judicial review cases is particularly worrying as most of the Cart challenges are immigration and asylum cases that involve basic human rights issues.[27] The proposed reform could have detrimental effects on English human rights jurisprudence and could lead to violations of the European Convention of Human Rights and Refugee Convention.[28] Despite the calls to establish an alternative mechanism for such challenges, the government, in its spirit of  administrative efficiency, rejected all such proposals. Arguing that any alternative mechanism would ‘shift the impact on resources to another part of the justice system’;[29]little regard was given to the state of constitutional rights protection.

Secondly, we should not ignore the High Court’s historical function to correct errors of law of inferior courts and protect individuals ‘against unlawful actions by the Government and other public bodies’.[30] As held by Baroness Hale, the High Court’s supervisory jurisdiction is a common law artefact that protects the rule of law in the British constitution.[31] In Cart, the Court confirmed that the Upper Tribunal is not the High Court’s alter ego[32] and the government’s characterisation of the Upper Tribunal as ‘superior court of record’[33] does not automatically mean that its decisions are not amenable to judicial review. However, this seems to be the vision of the current reform – by preventing judicial review of the Upper Tribunal’s refusal to grant permission-to-appeal, the High Court’s supervisory jurisdiction over the Tribunals is ousted. Even though the Tribunals’ contribution to administrative efficiency cannot be overlooked, their procedures cannot guarantee the same scope of protection as the High Court’s judicial review, and are possibly incompatible with audi alteram partem and Article 6 of ECHR. It is therefore idle to claim that the rule of law is equally upheld if a case is decided by the Tribunal because that is true only where the Tribunals’ decisions are subject to control by ordinary courts.[34]

Thirdly, the bill extinguishes the High Court’s supervisory jurisdiction in an ouster clause. This specific form creates concerning optics in terms of the bill’s compatibility with the rule of law in light of the common law presumption against ouster clauses.[35] The bill not only ousts the High Court’s jurisdiction over the Upper Tribunal’s decisions,[36] but also embarks upon implementing its general ouster clause agenda, as revealed in the consultation paper.[37] Firstly, the Upper Tribunal’s decisions should not be regarded as ultra vires ‘by reason of any error made in reaching the decision’.[38] The provision re-introduces the distinction between jurisdictional and non-jurisdictional errors abolished in Anisminic.[39] The courts will no longer be able to rely on the holding in Anisminic, as it will be explicitly overruled in an Act of Parliament. The supervisory jurisdiction is ousted in its entirety in s 2(1)(3)(b). Secondly, s 2(1)(7) explicitly states that the decision ‘includes any purported decision’.[40] This provision would prevent the courts from bypassing an ouster clause by relying on the Privacy International holding, which established that unless stated explicitly, a clause does not oust the supervisory jurisdiction over a ‘purported determination’.[41] It appears that the government used past judgments as a rule book for drafting a bullet-proof Act of Parliament. While it is true that the judiciary has previously shown itself capable of getting around ouster clauses that go against the rule of law, the courts’ creativity in interpretation cannot be unlimited and eventually judges will be bound to give effect even to Acts incompatible with the common law.


The proposed bill purports to be an innocent technical modification of the judicial review system. However, the prospect of its enactment is alarming as the bill limits access to judicial review, ousts the High Court’s jurisdiction and diminishes protection of constitutional rights. Not only will the legislation affect individual challenges, it will limit the system of checks and balances, and through this alter the British constitutional regime. While it is true that judicial resources are limited, it is inappropriate to suggest that the solution lies in limiting access to justice. The judicial approach to this new type of legislation will have to change unambiguously to uphold the rule of law as one of the main tenets of the UK constitution.

Tevž Sitar is a law student at the London School of Economics and an editor of LSE Law Review.

An earlier version of this piece was originally published on the LSE Law Review blog under the title ‘Judicial Review Reform: The Move From Constitutional Democracy to Elective Dictatorship‘.

The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.

[1] Judicial Review and Courts Bill 2021, s 1(1)(1).

[2] Ministry of Justice, ‘Judicial Review Reform Consultation: The Government Response’ (July 2021) 20.

[3] ibid [66].

[4] Lord Hailsham of St Marylebone, The Dilemma of Democracy (Collins 1978).

[5] Albert V Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Macmillan 1915) 4.

[6] Andrew Le Sueur, Maurice Sunkin, Jo Eric Khushal Murkens, Public law: Text, Cases, and Materials (4th edn, Oxford University Press 2019) 152.

[7] As was the case in the European Union (Notification of Withdrawal) Act 2017.

[8] Judicial Review and Courts Bill 2021 s 2(1)(2).

[9] R (on the application of Cart) v Upper Tribunal [2011] UKSC 28, [24]. The Supreme Court heard two cases (R (on the application of Cart) v The Upper Tribunal; R (MR (Pakistan)) v The Upper Tribunal and Secretary of State for the Home Department). In both cases, the appellants challenged the Upper Tribunal’s decisions to refuse permission to appeal the First-tier Tribunal decision. Both appeals before the Supreme Court were dismissed.

[10] ibid [33].

[11] ibid [27].

[12] Ministry of Justice, ‘Judicial Review Reform: The Government Response to the Independent Review of Administrative Law’ (March 2021) 25.

[13] Judicial Review Reform Consultation (n 3) [35].

[14] Judicial Review Reform (n 13) [51].

[15] Judicial Review Reform (n 13) 25.

[16]Cart (n 10) [57].

[17] Cart (n 10) [41].

[18] Joanna Bell, ‘The Relationship between Judicial Review and The Upper Tribunal: What Have the Courts Made of Cart?’ (2018) Public Law 394, 406.

[19] R (on the application of Essa) v Upper Tribunal (Immigration and Asylum Chamber) [2012] EWHC 1533 (QB).

[20] R (on the application of HS) v Upper Tribunal (Immigration and Asylum Chamber) [2012] EWHC 3126 (Admin).

[21] R (on the application of Ground Rents (Regisport) Ltd) v Upper Tribunal (Administrative Appeals Chamber) [2013] EWHC 2638 (Admin).

[22] R (on the application of AA (Iran)) v Upper Tribunal (Immigration and Asylum Chamber) [2013] EWCA Civ 1523.

[23] Judicial Review Reform Consultation (n 3) [36].

[24] Cart (n 10) [56].

[25] ibid [56].

[26] Cart (n 10) [41].

[27] ibid [36].

[28] Judicial Review Reform Consultation (n 3) [31].

[29] Cart (n 10) [37].

[30] Lord Woolf and others, De Smith’s Judicial Review (8th edn, Sweet & Maxwell 2020) para 4006.

[31] Cart (n 10) [37].

[32] ibid [37].

[33] Cart (n 10) [30].

[34] Sir William Wade and Christopher Forsyth, Administrative law (11th edn, Oxford University Press 2014) Part I, ch. 2.

[35] R (on the application of Privacy International) v Investigatory Powers Tribunal [2019] UKSC 22, [107]. The organisation Privacy International filed a judicial review claim against the Investigatory Powers Tribunal’s decision that the Secretary of State has the power to issue so-called thematic warrants under s 5(2) of the Intelligence Services Act 1994. However, the Regulation of Investigatory Powers Act 2000 (RIPA) s 67(8) disallowed judicial review of that decision. The question before the Supreme Court was whether the High Court’s supervisory jurisdiction was truly ousted by s 67(8) and in accordance with what principles can the jurisdiction be ousted in a statute.

[36] Judicial Review and Courts Bill s 2(1)(2).

[37] Judicial Review Reform Consultation (n 3) [47].

[38] Judicial Review and Courts Bill s 2(1)(3)(a).

[39] Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147. Anisminic Ltd owned property in Egypt which was sequestrated by the Egyptian Government in 1956. In applying for compensation for the property, the Foreign Compensation Commission misconstrued the Foreign Compensation Act 1950, s. 4(1) and refused to grant compensation to Anisminic. The House of Lords held that s 4(4) (which contained an ouster clause) did not oust judicial review of such a case, since the determination of refusing compensation made by the Commission was only a purported determination which was amenable to judicial review and therefore inquired whether the Commission’s determination was a nullity.

[40] Judicial Review and Courts Bill s 2(1)(7).

[41] Privacy International (n 38) [163], [164] as per Lord Lloyd-Jones. Purported determination refers to the decision-maker’s decisions that purports to be a determination but is not actually a determination because of the error of law which was made by the decision-maker.