The Cart before the horse?: Reform and Cart judicial review

In recent years, indignation on the topic of judicial review has permeated through administrative law. Questioning the lawfulness of decisions made by public bodies is arguably today a norm. Furthermore, it is difficult to reconcile this with some public bodies – which have wide discretionary powers – without running at least a risk of arbitrary decisions or mellifluous outcomes. It is arguably this backdrop which has thus led the government to seek reform of judicial review.

The Judicial Review and Courts Bill is part of an ongoing reform programme launched in July 2020, by the Independent Review of Administrative Law (IRAL) chaired by Lord Faulks QC. Details of the recommendations were submitted to the Lord Chancellor, Robert Buckland QC MP, in January 2021 and published for public consultation on 18^th March 2021. In summary, the IRAL made the following recommendations for changes to the substantive law:

• Abolishing Cart JRs: Applications for judicial review against a decision of the Upper Tribunal (the UTT) to refuse permission to appeal against a decision of the First-Tier Tribunal (the FTT), on the basis that the FTT’s decision was affected by an error of law.
• Allowing courts to suspend Quashing Orders: The remedies that are potentially available, when an application for judicial review is successful, are set out in s.31 of the Senior Courts Act 1981.

Change 1: What is a Cart judicial review?

The judgment in R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent) On appeal from the Court of Appeal (Civil Division) [2010] EWCA Civ 859 determined the High Court could judicially review decisions of the Upper Tribunal to refuse permission to appeal from the First-tier Tribunal (whereas previously, it was held they could not). Critics argue that the judgment therefore expanded the use of judicial review – and, as such, these applications have since been known as Cart judicial reviews. Such claims, while resulting in very low success rates (around 3 per cent), are the most numerous type of judicial review case (around 750 per year, from 2016 to 2019). By comparison, other types of judicial reviews are generally successful in 40-50 per cent of cases. Moreover, the Judicial Review and Courts Bill will effectively reverse Cart. This means Upper Tribunal decisions not to grant permission will apparently be final, and seemingly without avenues for review by any other court. However, it is argued that this will free up valuable resources in the High Court and uphold the jurisdictional status of the Upper Tribunal (https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/1004587/jr-courts-bill-fact-sheet-jr.pdf).

Change 2: What is a Quashing Order?

As most readers will know, a Quashing Order is an order of the court that revokes the original action or decision being challenged.

Clause 1 of the Judicial Review and Courts Bill would introduce a new s.29A into the Senior Courts Act 1981 – that would state:

(1) 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.

The proposed section goes on to provide that a Quashing Order includes a provision under subsection (1)(a) for the quashing not to take effect until a date specified in the order. In other words ‘the impugned act’ is ‘upheld’ until the quashing takes effect and is to be treated, until such a time ‘as if its validity was unimpaired’ (s.29A(3)&(4): https://publications.parliament.uk/pa/bills/cbill/58-02/0152/210152.pdf).

Despite the uncertainty of the Judicial Review and Courts Bill’s Parliamentary progression, it is clear that this Bill seeks to narrow the scope of judicial review.

In R (on the application of A) v Secretary of State for the Home Department [2021] UKSC 37, the Supreme Court unanimously dismissed an appeal concerning the standards to be applied by a court on judicial review of the contents of a policy document or statement of practice issued by a public authority. It is one of two appeals heard by the same panel of five Justices examining similar issues. It should be read together with the UKSC’s judgment in R (on the application of BF (Eritrea)) v Secretary of State for the Home Department [2021] UKSC 38.

Calls to reform judicial review are not an uncommon occurrence. Think tank organisations such as Policy Exchange have been the main repository as to the uncertainty of policies or statements of practice issued by a public authority that could be subject to judicial review. The leading authority in this particular area is the decision of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] 1 AC 112. Gillick concerned a challenge to the legality of a policy on the prescription of contraceptives to children under the age of 16. The policy advised GPs that it would be unusual to provide contraceptive advice or treatment to those under the age of 16 without parental consent.

How is Gillick competency assessed?

Scarman LJ’s comments, in judgment in Gillick, are often referred to as the test of “Gillick competency”. His Lordship said:

“...it is not enough that she should understand the nature of the advice which is being given: she must also have a sufficient maturity to understand what is involved.” ([1984] 2 All ER 449 at 457; [1984] AC 778, at [806]).

Scarman LJ also commented more generally on the rights of parents versus children:

“parental right yields to the child’s right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision” ([1986] AC 112, at [186]).

However, the judgments of the Court of Appeal post-Gillick had suggested a possible loosening of the Gillick criteria, making it easier to challenge policies which may have been applied in a manner that was unlawful. In R (A) v Secretary of State for the Home Department (A) and R (BF (Eritrea)) v Secretary of State for the Home Department (BF) [2021] UKSC 38, the Supreme Court effectively reversed this trend, reaffirming the Gillick criteria.

In conclusion, the recent judgment in R (A) v SSHD and R (on the application of BF (Eritrea) v SSHD relates to the standards to be applied by a court when it is asked to conduct a judicial review of the contents of a policy document, or statement of practice issued by the Government. These judgments have narrowed the chasmic disparity that many commentors and think tank organisations assert, regarding the alleged over-reliance on, and acceptance of, judicial reviews. The judgment above was never a mechanism for a more balanced Gillick criteria.

Considering the Judicial Review and Courts Bill would appear to be striving to phase out judicial review based on policy documents or statements of practice. It will be interesting to see how the Gillick precedent and subsequent cases are used in future judicial reviews – or not.

 Mr Cathál MacPartholán FRSA is a Lawyer and Law Lecturer. He is also an Academic Door Tenant with Holborn Chambers: https://orcid.org/0000-0001-5645-7999