Relief as government drops ‘remedy presumption’ from JR bill

A decision made by the government to remove a controversial element of its judicial review reforms that could have weakened judicial discretion over remedies has been welcomed by the Law Society.

‘The House of Commons today? that the government would not seek to overturn a Lords amendment to the Judicial Review and Courts Bill that would remove a statutory presumption for judges to make suspended quashing orders’ – said by justice minister James Cartlidge.

But Cartlidge did mention that the government did not accept the argument that the presumption fettered discretion or was dangerous. He also said that ‘Its purpose is to precipitate the rapid accumulation of jurisprudence on the use of these new powers. In furthering that purpose, however, we have heard persuasive arguments that it is in fact unnecessary. I am reassured, particularly by the learned former members of the judiciary who contributed to the debates in the other place, that judges will use these powers and consider their use regularly without the need for the presumption.’ 

The introduction of prospective-only quashing orders and a statutory presumption, arguing that they would deny remedy to those affected by unlawful acts and have a chilling effect on judicial review has been opposed by the Law Society.

In response to this, Society president I. Stephanie Boyce said that ‘If the state is found by an independent court to have done something wrong it’s important the judge has discretion to make good in a way that fits the specifics of the case. With the government’s concession, people who are the victim of an unlawful state action will continue to be able to seek justice on a level playing field’. He also added that he is pleased that the government has listened to experts in this area of law and heeded the call to remove the presumption from the bill which would have severely curtailed judge’s discretion.