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Over the last 157 years, the Open Spaces Society has taken pride in successfully using the courts to rectify wrongs affecting commons, greens, other open spaces, and public paths. We also back our members in their legal actions. Now, the Westminster government’s Judicial Review and Courts Bill is set to have a profoundly detrimental effect on our justice system.
The bill was introduced to parliament in July 2021, with committee stage in the house of commons in November 2021, and report stage on 25 January 2022.
Clause 1 of the bill introduces changes to judicial review (JR) that could make it impossible for claimants to secure effective remedies for unlawful decisions. At present, the court can issue a quashing order to revoke the unlawful action or decision so that it never had any legal effect. Clause 1 introduces two new remedies: suspended quashing orders, which only take effect at a certain point in the future, and prospective quashing orders, which also have a forward-looking effect, and validate the past implementation of an unlawful decision—although it is unclear how these will operate.
We are opposed to these new ‘remedies’ as they will not necessarily result in the righting of legal wrongs. They would allow unlawful decisions to stand for an unknown length of time with continuing damage, and they do not provide claimants with meaningful redress—contrary to the Aarhus Convention which confirms a right to timely and effective remedies.
The clause directs the court to consider a series of factors in JR cases where a suspended or prospective order may apply. These include consideration of whether the judgment would render inconvenience to decision makers; the interests or expectations of persons who would benefit from the quashing, and of those who have relied on the impugned act; and any action taken or proposed to be taken by a person with responsibility in connection with the decision in question. This means that the court must give legal weight to non-legal, and possibly political, factors, and such weight would clearly benefit the defendants.
In addition, the court must consider whether ‘adequate redress in relation to the relevant defect’ would be provided by a suspended or prospective order, having regard to any action taken or proposed to be taken by the defendant in connection with the impugned act. If such an order would ‘appear’ to provide adequate remedy, the court must then grant it. This sets the bar worryingly low.
The new position would mean that where a court issues a quashing order it must suspend it, or limit any retrospective effect, unless there is good reason not to. This new system is going to be a severe deterrent to those wanting to use the courts to put wrongs right, and our interests, and those of other amenity groups, will be severely damaged.
OSS believes clause 1 should be deleted. As a member of the Wildlife and Countryside Link Legal Strategy Group we support its briefing and the amendments it has sent to MPs.