Policy background Judicial Review
Judicial Review is one of the mechanisms in the UK’s Constitution which provides citizens with a means to ensure that those holding public office or exercising public powers are held accountable and use their powers according to the boundaries and the manner in which they should be exercised, as set down and as intended by Parliament.
	Judicial review is not concerned with the merits of a decision, but with whether it was lawfully made. In England and Wales, an application for judicial review can be brought on the grounds of illegality, procedural unfairness, unreasonableness/irrationality or for breach of the Human Rights Act 1998. The court "reviews" the decision at issue and decides if it is flawed and, if it is, may grant remedies.
	In England and Wales, applications for judicial review are made to the Administrative Court, in the Queen’s Bench Division of the High Court. In Northern Ireland, applications are made to the High Court (Northern Ireland); and in Scotland, to the Court of Session (Outer House).
	In its manifesto ahead of the 2019 UK General Election the Government committed to ensuring "that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays".
	In light of that commitment in July 2020 the Government established the Independent Review of Administrative Law (IRAL), chaired by Lord Faulks QC, to consider options for reform to the process of Judicial Review. The IRAL panel was asked to examine trends with regard to the judicial review of executive action, in particular in relation to the policies and decision making of the Government, and to consider how the legitimate interest in the citizen being able to challenge the lawfulness of executive action through the courts can be properly balanced with the role of the executive to govern effectively under the law.
	The panel’s terms of reference asked it to give particular consideration to:
Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute;
Whether the legal principle of non-justiciability requires clarification and, if so, the identity of subjects/areas where the issue of the justiciability/non-justiciability of the exercise of a public law power and/or function could be considered by the Government;
Where the exercise of a public law power should be justiciable: (i) on which grounds the courts should be able to find a decision to be unlawful; (ii) whether those grounds should depend on the nature and subject matter of the power; and (iii) the remedies available in respect of the various grounds on which a decision may be declared unlawful; and
Whether procedural reforms to judicial review are necessary, in general to "streamline the process".
	The IRAL conducted a Call for Evidence, which ran from 7 September to 26 October 2020. It submitted its final report to Government in January 2021 and that report was published on 18 March 2021.
	The IRAL report made two recommendations for changes to the way the substantive law on judicial review operates. First, it recommended overturning the Supreme Court decision in R (on the application of Cart) v The Upper Tribunal [2011] UKSC 1 concluding that "the continued expenditure of judicial resources on considering applications for a Cart JR cannot be defended, and that the practice of making and considering such applications should be discontinued". 2 Second, it recommended legislating to "give courts the option of making a suspended quashing order, that is, a quashing order which will automatically take effect after a certain period of time if certain specified conditions are not met". 3 In addition, it made a number of recommendations for procedural reform.
	Alongside the publication of the IRAL report on 18 March the Government also published a public consultation document in which it indicated its intention to accept the recommendations of the IRAL report for reforming the substantive law and additionally sought views on a number of further measures. These included:
legislating for a general framework to clarify the effect of statutory ouster clauses;
legislating to introduce remedies which are of prospective effect only, to be used by the courts on a discretionary basis; and
legislating on the principles which lead to a decision being a nullity by operation of law.
	After considering the IRAL report and the responses to the public consultation the Government has focussed its reforms on two specific areas of the substantive law, both of which are included in this Act. The Government has decided not to proceed with the proposal to legislate for a general framework to clarify the effect of ouster clauses or the wider proposal to legislate on the principles which lead to a decision being a nullity. Instead it will focus on removing the Cart JR avenue of review, and providing for additional powers to courts to suspend or alter the retrospective effects – this is to provide the courts with more flexibility when deciding how best to use any remedies.