Judicial Review and Courts Act 2022
1. Introduction:
Judicial Review and Courts Act 2022 was enacted following the Independent
Review of Administrative Law (IRAL) and a subsequent Government consultation
process.
s.2 involves the reversal of R (Cart) v Upper Tribunal, which adopted the
second-tier appeals criteria, holding that judicial review of the Upper
Tribunal’s permission-to-appeal should be available whenever the intended
challenge raises an important point of principle of practice or where there is
some other compelling reason for the High Court to hear the claim.
This is evident by s.2(1)(2) which states that with regard to the Upper
Tribunal’s permission-to-appeal decision, this “decision is final, and
not liable to be questioned or set aside in any other court.”
This is not, however, a complete ouster.
s.2(4) retains 4 grounds on which judicial review is retained.
This essay will argue that enactment of this section was a serious misstep by
Parliament.
Not only is the Government’s rationale behind the clause flawed and
unfounded, but the section is also liable to have a detrimental impact on
access to justice, thereby running contrary to the rule of law.
What’s more, the 4 grounds on which judicial review is retained seem wholly
arbitrary and they are so narrow that, while in name not a complete ouster,
the section has almost the same effect as if it was.
2. Rationale behind the statute:
It is clear from the Government’s response to the IRAL that the primary reason
behind the enactment of s.2 of the Act appears to be based on efficiency and
proportionality.
They claim that resources have been disproportionately allocated to Cart
judgements relative to its effectiveness, finding a success rate of 0.22%
(which after re-evaluation was raised to 3%).
BUT – as Tomlinson and Pickup pointed out, the IRAL’s method of evaluating this
success rate is questionable and inaccurate.
It was stated that there were 5502 applications for JR under the rule in Cart
of which only 12 cases were deemed to be officially successful, which led to
the Panel’s finding that only 0.22% of all applications were successful.
The fatal flaw with this, however, is that official reports/transcripts were accessible in
only 45 of these 5502 cases.
Tomlinson and Pickup submitted that a more accurate representation would
be made if the success rate were obtained by using the number of positive
results only from cases with recorded results since it would be “absurd” to
assume that the remaining 5457 cases without official reports were
unsuccessful.
Following this method, they approximate the success rate to be more
in the region of 26.7%.
This figure was not meant to be taken seriously as the stat,
but rather highlights the flaw in the method in determining
the success rate of Cart applications.
The Government’s claim that s.2 was needed to counteract the low success rate
therefore appears to be unsubstantiated.
3. Rationale continued:
The Ministry of Justice also believed that this section “that removes the Cart
judgement will serve as a framework that can be replicated in other legislation” and
1. Introduction:
Judicial Review and Courts Act 2022 was enacted following the Independent
Review of Administrative Law (IRAL) and a subsequent Government consultation
process.
s.2 involves the reversal of R (Cart) v Upper Tribunal, which adopted the
second-tier appeals criteria, holding that judicial review of the Upper
Tribunal’s permission-to-appeal should be available whenever the intended
challenge raises an important point of principle of practice or where there is
some other compelling reason for the High Court to hear the claim.
This is evident by s.2(1)(2) which states that with regard to the Upper
Tribunal’s permission-to-appeal decision, this “decision is final, and
not liable to be questioned or set aside in any other court.”
This is not, however, a complete ouster.
s.2(4) retains 4 grounds on which judicial review is retained.
This essay will argue that enactment of this section was a serious misstep by
Parliament.
Not only is the Government’s rationale behind the clause flawed and
unfounded, but the section is also liable to have a detrimental impact on
access to justice, thereby running contrary to the rule of law.
What’s more, the 4 grounds on which judicial review is retained seem wholly
arbitrary and they are so narrow that, while in name not a complete ouster,
the section has almost the same effect as if it was.
2. Rationale behind the statute:
It is clear from the Government’s response to the IRAL that the primary reason
behind the enactment of s.2 of the Act appears to be based on efficiency and
proportionality.
They claim that resources have been disproportionately allocated to Cart
judgements relative to its effectiveness, finding a success rate of 0.22%
(which after re-evaluation was raised to 3%).
BUT – as Tomlinson and Pickup pointed out, the IRAL’s method of evaluating this
success rate is questionable and inaccurate.
It was stated that there were 5502 applications for JR under the rule in Cart
of which only 12 cases were deemed to be officially successful, which led to
the Panel’s finding that only 0.22% of all applications were successful.
The fatal flaw with this, however, is that official reports/transcripts were accessible in
only 45 of these 5502 cases.
Tomlinson and Pickup submitted that a more accurate representation would
be made if the success rate were obtained by using the number of positive
results only from cases with recorded results since it would be “absurd” to
assume that the remaining 5457 cases without official reports were
unsuccessful.
Following this method, they approximate the success rate to be more
in the region of 26.7%.
This figure was not meant to be taken seriously as the stat,
but rather highlights the flaw in the method in determining
the success rate of Cart applications.
The Government’s claim that s.2 was needed to counteract the low success rate
therefore appears to be unsubstantiated.
3. Rationale continued:
The Ministry of Justice also believed that this section “that removes the Cart
judgement will serve as a framework that can be replicated in other legislation” and
