Constitutional All Change? The Judicial Review And Courts Act, The Brexit Freedoms Bill And A New Bill Of Rights

• Published date: 18 May 2022
• Subject Matter: Government, Public Sector, Constitutional & Administrative Law, Human Rights
• Law Firm: Herbert Smith Freehills
• Author: Mr Andrew Lidbetter, Nusrat Zar, Jasveer Randhawa and Hannah Lau

Recent weeks have seen a number of notable developments concerning new or proposed legislation which could have a wide-ranging impact on aspects of public and administrative law. In particular:

• The Judicial Review and Courts Act 2022 has recently received Royal Assent and introduces, amongst other things, changes to remedies in judicial review.
• The Queen's Speech, delivered on 11 May 2022, revealed the Government's legislative agenda for the Parliamentary year ahead, including the introduction of a Bill of Rights and a Brexit Freedoms Bill which could impact claims based on human rights and retained EU law respectively, going forward.

The Judicial Review and Courts Act 2022 (the "JRCA")

On 28 April 2022, the JRCA received Royal Assent (though the relevant provisions discussed below have not yet come into force). The JRCA will introduce a number of changes to judicial review, which we detail further below. You can also listen to our views on the draft bill here.

(i) Quashing orders

Section 1 of the JRCA amends the Senior Courts Act 1981 to provide for two new types of quashing order, which can be made with or without conditions:

• A suspended quashing order ("SQO") which may provide that quashing does not take effect until a date specified in the order. The impugned decision or act will be valid until that date. The purpose of having a period of suspension would be to retain some certainty in a period where the original decision is valid, whilst allowing the public body time to re-evaluate its decision before the date of suspension.
• A prospective quashing order ("PQO") which may remove or limit any retrospective effect of the quashing The effect of a PQO would be that only future acts or decisions would be affected.

In deciding whether to make an SQO or PQO, the court must take into account factors such as:

• The nature and circumstances of the relevant defect;
• Any resulting detriment to good administration;
• The interests or expectations of persons who would benefit from the quashing;
• The interests or expectations of persons who have relied on the impugned act; and
• Any other matter that appears relevant to the court.

Notably, the Government accepted the House of Lords' proposal to remove the presumption that either an SQO or PQO should be granted where this offered adequate redress, unless there was a good reason not to do so. We welcome this amendment as it gives the courts greater discretion as to the use of these new remedies.

(ii) Exclusion of...