The Garden Court Chambers Public Law team have put together a response to the Ministry of Justice's proposals for reform of judicial review.
In summary, we are extremely concerned that the proposals will render current remedies such as quashing orders ineffective and remove other routes to remedy, such as Cart JRs, entirely. We also have serious concerns about the evidence basis used to justify the proposal to remove the Cart safety valve: in our view this has been proposed in reliance on a quantitative assessment that fails to grasp the seriousness of the cases involved and, more importantly, is so misleadingly inaccurate as to be without value.
Furthermore, while it may be inconvenient for the state to have to pay compensation to individuals subject to unlawful action that does not justify the introduction of a remedy that would in effect disregard that unlawful action. Where a person has been treated in a manner that is unlawful by a public body they are entitled to have that recognised by the courts and to have a remedy for it – that is the essence of the rule of law the public is likely to be alarmed by any proposal to erode it, particularly in order to prevent ministers from suffering the consequences of unlawful action taken with the powers of Parliament but little or none of its scrutiny.
Our clear view is that the majority of the proposals will likely undermine the rule of law and principles of legality with Government and public bodies being able to rely on unlawful acts and policies. It is likely to lead to very significant injustice in a large number of cases. We urge the Ministry of Justice to abandon and rethink these ill thought out proposals.