The government’s attack on judicial review should concern us all

High Court of Justice, London Photo by Bjorn Erik Pedersen

A summary from All the Citizens, a not-for-profit set up in the midst of the global pandemic – with a mission to use impact journalism to hold government and big tech to account. 

The Judicial Review & Courts Bill went through a 2nd reading in the House of Lords on 7 February.

In a powerful speech Baroness Chakrabarti set out why the bill is yet another ‘attack on the rule of law from a government neither conservative nor liberal in its instincts’.

Judicial Review is the mechanism by which courts can hold the government and public bodies to account, ensuring the lawful exercise of power.

“It exists to level the playing field between citizens and state” (Shami Chakrabarti).

Proposed changes to Judicial Review will potentially

weaken judicial discretion, deny remedy to those affected by unlawful acts & have a chilling effect on judicial review

The Law Society

One of the most controversial changes proposed is ‘prospective-only quashing orders’ for some cases, which would treat past acts or decisions as invalid/unlawful only from the time of the judgement onwards.

This could have profound consequences for those challenging unlawful acts or decisions by the governmentt or public bodies, as Shami Chakrabarti explained to the House of Lords last night

A lack of remedy on previous unlawfulness might discourage claimants from seeking recourse in court since they would not benefit from remedy themselves.

[Here is a quote from Liberty explaining this in more detail. Ed]

The imposition of a prospective-only remedy would result in halting only the future
effect of an unlawful decision or secondary legislative provision, with its previous effect
being treated as if it had been valid. This creates a situation in which two otherwise
identical cases are treated entirely differently depending on whether they were
affected before or after a court judgment. Those who were impacted by the unlawful decision before the judgment would have been just as wronged as those impacted after, but would not have recourse to any remedy.

This means that an individual claimant bringing a case may help to overturn an unjust decision, but not improve their own situation. An obvious example would be a challenge to the eligibility for welfare benefits – a successful challenge followed by the imposition of a prospective-only remedy could see a claimant acknowledged as having been treated unfairly, but still coming out without the benefit the court recognised they were owed.


And, as Shami Chakrabarti points out, we can’t rely on the Human Rights Act to protect us, as the government appears to have set its sights on scrapping that too.]

Originally tweeted by The Citizens (@allthecitizens) on 08/02/2022.

The House of Lords returns to business on Monday 21 February, with detailed consideration of the Judicial Review and Courts Bill 

Action you can take:

You can sign this petition from Liberty, calling in the government to preserve our human rights and pledge your support for measures to prevent this government from becoming untouchable, putting itself beyond the rule of law and the democratic checks and balances.

You can write to one or more members of the House of Lords to urge them to vote down the bill on its third reading.

You can write to your MP to say that you do not support measures which could deny citizens access to judicial review and which make it harder than ever to hold government to account.