Judicial Review And Courts Act 2022

Policy background

Judicial Review

3. 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.
4. 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.
5. 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).
6. 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".
7. 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.
8. The panel’s terms of reference asked it to give particular consideration to:
   1. 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;
   2. 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;
   3. 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
   4. Whether procedural reforms to judicial review are necessary, in general to "streamline the process".
9. 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.
10. 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.
11. 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:
    1. legislating for a general framework to clarify the effect of statutory ouster clauses;
    2. legislating to introduce remedies which are of prospective effect only, to be used by the courts on a discretionary basis; and
    3. legislating on the principles which lead to a decision being a nullity by operation of law.
12. 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.

Remedies

13. Currently, when considering a judicial review, the High Court has various remedies available to it. These are:
    1. An order quashing the decision in question (quashing order, previously certiorari);
    2. An order restraining the body under review from acting beyond its powers (prohibiting order, previously prohibition); and
    3. An order requiring the body under review to carry out its legal duties (mandatory order, previously mandamus).
    4. The High Court can also make declarations, issue injunctions, and in very rare cases grant damages.
14. The IRAL Panel recommended that the Government create a power for the courts to suspend the effects of quashing orders and suggested the Government should legislate to the effect that "on an application for Judicial Review the High Court may suspend any quashing order that it makes, and provide that the order will not take effect if certain conditions specified by the High Court are satisfied within a certain time period".
15. The Panel’s reasoning was that such a remedy would increase the flexibility of the set of remedies available and increase the court’s flexibility in deciding which remedy could be appropriate. The court would thus be better able to tailor its remedies to the facts of the case. The need for flexibility stems from the immediate effect of the current set of remedies – that they only provide for a decision being invalid and quashed immediately and retrospectively, or for no remedy to be given, or a declaration of unlawfulness. This legislation does not provide for a specific mechanism for the second part of the IRAL’s recommendation – that a court could set conditions, which if fulfilled would prevent the decision being quashed. It was considered that such a power could create practical complexities in its use and the set of cases where this remedy appeared feasible is extremely small.
16. The Panel saw two general areas where a suspended quashing order may be useful.
17. First, in circumstances where a case raised significant constitutional questions, or where quashing a decision would pose significant risks to national security or the public interest, a suspended quashing order could be used to allow Parliament to clarify or amend the position.
18. Secondly in circumstances where a suspended quashing order would allow the defect to be corrected. For example, in R (Hurley and Moore) v Secretary of State for Business, Innovation & Skills [2012] EWHC 201 (Admin), the High Court found that the Secretary of State had, in issuing Regulations allowing universities to charge students up to £9,000 in fees, "failed fully to carry out his public sector equality duties" to assess properly whether the proposed Regulations would prove unacceptably discriminatory on grounds of race, sex or disability. Despite this, the High Court declined to quash the Regulations because of the inconvenience that it would cause. Instead, the Court issued a declaration that the Secretary of State had acted unlawfully. As a remedy, a suspended quashing order may have provided more flexibility. Such an order could have indicated that that the Regulations would be quashed within a couple of months of the Court’s judgment but would give the Secretary of State time to prepare for the effect of any quashing or to consider the "public sector equality duties" and whether the Regulations needed to be revised.
19. It is the Government’s view that the argument for increased remedial flexibility extends to providing the courts with a further power to modify the retrospective effects of a quashing order. The Government’s public consultation proposed legislating for "prospective quashing orders" where the courts could declare an action or decision unlawful onwards from a particular point. Consultees had mixed views on this proposal and a number argued that they struggled to conceive of many cases where such a remedy would be appropriate. The Government acknowledges that these circumstances may arise relatively rarely, however, it believes that the courts will apply their discretion appropriately and as an additional tool for them to use in deciding on remedies the proposal does have merit. Therefore, the Act provides the courts with an additional power to remove or limit the retrospective effect of any quashing order it makes.
20. With regard to the new remedial powers that the Government is providing for in this Act it considers it appropriate to provide the court with a non-exhaustive list of factors that it should consider when deciding whether to suspend or alter the retrospective effects in that specific case. This should aid consistency as the courts consider when and how to apply the new remedies.
21. The Bill originally contained a general presumption to use these new remedial powers in circumstances where it appears to the court that they afford adequate redress unless there is a good reason not to do so. This was removed during the passage of the Bill and is not part of the Act.
22. Since Anisminic v FCC [1969] 2 AC 147, [1969] 2 WLR 163 and subsequent cases dealing with the question as to whether any error of law constitutes a jurisdictional error thus invalidating the act in question, there has been arguable ambiguity as to what kind of errors make a decision invalid and which do not. The case Ahmed v HM Treasury (No. 2) [2010] 2 AC 534 exposed one of the ramifications of invalidity on the court’s remedial discretion. In Ahmed (No. 2) it was held that it would be pointless (and misleading) to suspend the coming into force of a quashing order because it would make no difference to the underlying legal position: it was not the quashing order that deprived the relevant orders of effect, but the fact that they were ultra vires. The sections, while empowering the court to modify a quashing order, also provide for the effects of its doing so in the context of the doctrine of nullity. This means that the underlying invalidity of the act in question may be disregarded and the act treated as valid until the quashing order comes into effect (in regard to suspended orders), or its past use may be permanently treated as if it were valid. So, regardless of a particular error being deemed as invalidating the act the court may still suspend or alter the effect of a quashing order, which in turn would allow the act to be treated as valid, as if the error invalidating the act had not occurred.

Cart Judicial Reviews (Cart JRs)

23. Cart JRs are applications for judicial review of a decision of the Upper Tribunal (the UT) to refuse permission to appeal against a decision of the First-tier Tribunal (the FtT).
24. This type of judicial review arose from the 2011 decision of the United Kingdom Supreme Court (the UKSC) in R (on the application of Cart) v The Upper Tribunal; R (on the application of MR (Pakistan)) v The Upper Tribunal (Immigration & Asylum Chamber) and Secretary of State for the Home Department [2011] UKSC 28. These two English cases were heard alongside a Scottish case raising the same issues, judgment for which was given separately (Eba v Advocate General for Scotland [2011] UKSC 29). All three cases were brought by claimants who had failed in their initial appeals to the FtT and were then refused permission to appeal to the UT – first by the FtT, and then by the UT itself.
25. In the absence of any further route of appeal against the UT’s decision the claimants in the Cart cases asked the High Court (and the Court of Session, in Eba) to judicially review the UT’s refusal of permission to appeal. The Supreme Court concluded that the High Court (and the Court of Session) retained a supervisory jurisdiction over such matters, establishing the process for what became known as Cart JRs.
26. Since Cart JRs came into existence the number of challenges via this route is high, and the success rate is low. The IRAL panel assessed this success rate as just 0.22%. Having investigated this further the Government believes that the success rate is slightly higher and estimates it is around 3%. This remains lower than in most other types of judicial review.

Criminal Courts

27. Her Majesty’s Courts and Tribunal Service (HMCTS) is an executive agency of the Ministry of Justice (MoJ) and is responsible for the administration of courts and tribunals in England and Wales. This includes the criminal court system, which comprises of magistrates’ courts, the Crown Court and the criminal division of the Court of Appeal.
28. There have been two notable reviews of the efficiency of the criminal court system in England and Wales in recent decades: by Sir Robin Auld in his "Review of the Criminal Courts (2001)" 4 and Sir Brian Leveson in his "Review of Efficiency in Criminal Proceedings (2015)". 5 Both of these reviews identified improvements that could be made to the structure, processes, and efficiency of the criminal justice system (CJS).
29. In September 2016, the then Government published a consultation paper titled "Transforming our Justice System", which was released in tandem with a joint statement by the Lord Chancellor, the Lord Chief Justice of England and Wales, and the Senior President of Tribunals. 6 The joint statement described plans for a modern court system, shared by the Government and senior judiciary, stating "the vision is to modernise and upgrade our justice system so that it works even better for everyone, from judges and legal professionals, to witnesses, litigants and the vulnerable victims of crime." The statement also identified a number of "real challenges" that still remain in the justice system today through inefficient and outdated processes.
30. The majority of the criminal court measures contained in this Act were first introduced in the Prisons and Courts Act on 23 February 2017, which fell with the dissolution of Parliament when a general election was called that same year. The measures in this Act will help the Government to continue to realise the vision for the criminal courts that was described in the 2016 joint statement, as well as delivering on more of the recommendations that featured in Lord Justice Auld’s and Lord Justice Leveson’s previous reviews of the criminal court system. Furthermore, the measures will also complement new criminal court measures that feature in the Police, Crime, Sentencing and Courts Act ("the PCSC Act") (which enable greater use of audio and video technology in criminal proceedings where appropriate), and the judicial powers of authorised court officers created by the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018.
31. The criminal court measures in this Act also form part of HMCTS’s criminal court reform programme, in which the Government is investing over £1 Action to transform the courts and tribunals system, and a further £142 million of COVID-19 funding to upgrade court buildings so that they are digitally enabled. The measures will enable key parts of the reform programme so that the Government can continue to deliver vital improvements to the criminal court system and modernise the delivery of justice; this includes digitising and streamlining preliminary pre-trial court proceedings via the Common Platform, 7 removing unnecessary courtroom hearings, and forging stronger links between the Crown Court and magistrates’ courts. This will make the criminal courts more easily accessible to users and provide greater flexibility for the effective deployment of resources; saving court time, reducing delays, delivering swifter justice and supporting recovery.
32. While these measures are designed to reduce waiting times and unnecessary travel for court participants, a full hearing at court will always be available when needed and where the court considers it to be in the interests of justice.

Enabling written/online preliminary pre-trial proceedings and more flexible allocation of cases

33. All criminal cases begin in a magistrates’ court; however, criminal offences fall into three categories that affect which jurisdiction of the criminal court system is able to try and sentence them: summary-only offences (which should normally be heard in a magistrates’ court); indictable-only offences (which must be heard in the Crown Court), and triable either-way offences (which may be heard in either a magistrates’ court or the Crown Court). The decision to allocate a triable either-way case to the Crown Court is dependent on the complexity and severity of the case, the adequacy of magistrates’ court sentencing powers and a defendant’s right to elect for a jury trial.
34. The legal framework for preliminary pre-trial proceedings for all categories of criminal offence is set out in primary legislation under the Magistrates’ Courts Act 1980 ("the MCA 1980") and the Crime and Disorder Act 1998 ("the CDA 1998"). The practices and procedures which must be followed are generally set out in secondary legislation under the Criminal Procedure Rules (CrimPRs), which are made and regularly updated by the Criminal Procedure Rule Committee (CrimPRC). 8  This body of legislation and rules determines the circumstances in which a hearing must occur as part of a case’s progression, when and how to indicate and enter a plea, and how cases are allocated to be heard in a magistrates’ court or the Crown Court. The measures in this Act will make changes to the legal framework provided by the MCA 1980, the CDA 1998, and consequential legislation in order to provide new preliminary pre-trial proceedings that will increase flexibility in how a defendant can interact with the court in the lead up to trial and remove unnecessary hearings.
35. The criminal court measures in this Act will enable defendants in most triable either-way cases to have the option to engage with the court for certain preliminary pre-trial proceedings in writing/online via the Common Platform. Defendants will have the option (with the assistance of a solicitor) to provide an indication of plea and engage with the allocation procedure in writing/online without the need for a hearing in the magistrates’ court. If a defendant does not wish to engage through the new written/online procedure or the court does not provide them with the option in the first place (the exclusions will be set out in the CrimPRs), they will be required to appear at a court hearing and proceed as normal. The addition of a new invitation for defendants to elect for a jury trial at an earlier stage of the proceedings in triable either-way cases will also provide magistrates’ courts with the chance to bypass the subsequent allocation procedure (conducted at a court hearing or in writing/online), which will save the court time by removing the need to decide on the most suitable mode of trial when a defendant is certain that they wish to elect for trial in the Crown Court.
36. The criminal court measures will also provide greater flexibility in the way in which criminal cases can be allocated between magistrates’ courts and the Crown Court, where this is deemed appropriate by the court. It will enable magistrates’ courts in a wider range of circumstances to proceed with the plea-before-venue and allocation procedures in a defendant’s absence, so long as it is in the interests of justice to do so. It will provide the court with an important means of progressing cases which would otherwise stall and create uncertainty and lengthy waiting times. It will also enable magistrates’ courts to direct indictable-only and triable either-way cases to the Crown Court for trial or sentencing without the need for a first hearing at a magistrates’ court, which will ensure cases reach the most appropriate venue earlier in the proceedings and avoid unnecessary hearings. Furthermore, the Crown Court will be able to remit certain cases back to a magistrates’ court for trial (with a defendant’s consent) or for sentencing (where a magistrates’ court’s sentencing powers are considered to be sufficient) in a wider range of circumstances than it currently can.
37. The criminal court measures will aim to further improve efficiency and speed up court processes by removing statutory requirements to hold a hearing in relation to certain matters, namely determining applications for a witness summons and applications to lift reporting restrictions. Although the court will continue to have the option of convening a hearing in these circumstances, the measures will enable the court to make a decision "on the papers" without a hearing, where satisfied that this is appropriate.
38. Finally, the criminal court measures will amend existing legislation to enable the service of documents in criminal proceedings and certain related contexts to be in accordance with the CrimPRs. This means the most appropriate means of service (including service by electronic means) can be used in any given case, taking into account the preferred method of those individuals receiving the documents and their access to digital resources and online communication.

Removal of Local Justice Areas (LJAs)

39. This is one of several criminal court measures in this Act which will help create a more flexible and unified criminal court system. England and Wales are currently divided into 75 LJAs and this measure will provide for the removal of these jurisdictional boundaries. This will provide the magistrates’ courts with the freedom and flexibility to manage their caseloads more effectively and ensure that cases are dealt with sooner and in more convenient places. It will also help create a more unified criminal court system through the restructuring of the leadership and management arrangements for magistrates’ courts, so they can be more closely aligned to the Crown Court.

Introducing a new automatic online conviction and standard statutory penalty (AOCSSP) procedure

40. The then Government’s joint 2016 statement in response to its consultation "Transforming our Justice System" also set out its intentions to proceed with a new AOCSSP procedure, which would provide a new means of dealing with certain specified summary-only non-imprisonable offences. 9
41. Many defendants prosecuted for these types of offences can already choose to enter a plea in writing/online and have their case dealt with by a single magistrate (supported by a legal advisor) "on the papers" outside of a magistrates’ court hearing via the Single Justice Procedure (SJP), which was established under the Criminal Justice and Courts Act 2015 ("the CJCA 2015").
42. The criminal court measures in this Act will introduce the new AOCSSP procedure for certain summary-only non-imprisonable offences that will enable these cases to take place entirely online and without the involvement of a magistrate. Eligible offences will be specified in secondary legislation made by the Secretary of State and will need to be agreed by Parliament by the affirmative procedure. These will be the most straightforward cases and the Government’s intention is to initially apply this provision to travelling on a train or tram without a ticket and fishing with an unlicensed rod. Defendants will be required to opt-in for this procedure and choose to receive the automatic online conviction and the penalty specified for their offence.

Online Procedure Rule Committee

46. This proposal will establish a framework for Online Procedure Rules, made by a new Online Procedure Rule Committee (OPRC), to enable parties to civil, family or tribunal proceedings to use the online procedure. The rules are to apply to proceedings specified in regulations made by the Lord Chancellor. The government expects the Committee to focus on the civil and family jurisdictions in the first instance. In addition, the relevant sections will:
    1. Make provision for the membership of the OPRC and its scope and remit, including the procedure for appointing members.
    2. Enable the Lord Chancellor to alter the composition of the OPRC by regulations, made with the concurrence of the Lord Chief Justice and the Senior President of Tribunals and after consultation of other senior judicial office holders, in order to assist in making of new online rules. The OPRC itself will be independent and will be made up of members of the judiciary and members with expertise in the lay advice sector and IT.
    3. Prescribe the process for making Online Procedure Rules: rules must be signed by at least half of the members of the Committee, including the chair, or a majority of the members of the Committee in any other case (the committee will be made up of six members) before being submitted to the Lord Chancellor or Secretary of State for approval.
    4. Confer power on the Lord Chancellor to require the OPRC to make online rules to achieve a specified purpose and/or within a reasonable period in accordance with the prescribed procedures for making rules.
    5. Permit the Lord Chancellor to make amendments to other legislation which are necessary or desirable in order to facilitate the making of, or are consequential on, Online Procedure Rules.
    6. The Bill was also amended by the Government during its passage through the House of Lords to include give greater flexibility to the Online Procedure Rule Committee when it comes to establishing standards relating to dispute resolution conducted online before court proceedings are initiated. This will enable parties who try to resolve their dispute online prior to commencing legal proceedings, but don’t resolve some or all of their dispute, to then transfer into the legal process seamlessly. IT processes will allow these pre-action claims to "roll over" into the online legal processes where this is necessary, saving parties time in preparing a new claim.

Employment Tribunals

47. ETs were established under the responsibility of the Department for Trade and Industry (now Business, Energy and Industrial Strategy (BEIS)) by the Employment Tribunals Act 1996 (ETA), which also made provision about the Employment Appeal Tribunal (originally established under the responsibility of the Lord Chancellor by the Employment Protection Act 1975).
48. Following the transfer of the ETs and the EAT to the Tribunal Service (now Her Majesty’s Courts and Tribunal Service) in 2006, BEIS has retained responsibility for the rules and governance of ETs as well as the overarching policy framework for ETs and the EAT. Responsibility for making changes to the regulations which determine procedural matters within ETs continues to rest with BEIS ministers who make changes to regulations to address specific policy issues, including those that may be raised in consultation with stakeholders.
49. ETs are the only area of tribunal business where control over procedure rests with a Government minister in another department. This contrasts with all other matters heard in the justice system where procedural rules are the responsibility of independent judicial-led committees or of the Lord Chief Justice.

Transferring responsibility for the making of procedure rules for ETs and EAT from the Secretary of State for BEIS to the Tribunal Procedure Committee

50. In 2016 the Government consulted on reforming the employment tribunal structure and announced the transfer of responsibility for ET and EAT rules from the SoS BEIS to the Tribunal Procedure Committee (TPC). This Act will legislate for that change. The TPC is better placed to make and amend rules for the ETs, given that it is an independent rule-making committee. These arrangements will also allow for a quicker response to the need to introduce, amend or revise ET procedure rules to help address the backlog in outstanding ET claims as well as dealing with other changing circumstances such as the COVID-19 pandemic.
51. Although the policy intention is to make the arrangements between the ETs and other tribunals more consistent, the Government wishes to retain the existing distinct and separate structure of the ETs and EAT. The ETs and the EAT will therefore remain outside the unified tribunal structure and continue to retain separate rules (Employment Tribunal Procedure Rules) from the unified tribunal system (Tribunal Procedure Rules).

Aligning the power to make Employment Tribunal Procedure Rules with the TPC's power to make Tribunal Procedure Rules

52. The Act makes provision so that arrangements for making Employment Tribunal Procedure Rules for the ETs and EAT mirror the arrangements for the FtT and UT, conferring on the TPC in relation to the ETs and EAT all the powers and duties exercised in relation to the tribunals in the FtT and UT.

Providing for two additional members to be appointed to the TPC

53. The 2016 Consultation responses were strongly in favour of ensuring appropriate employment expertise on the TPC. To ensure that the membership of the TPC has the necessary skills and experience to fulfil its duties in relation to ETs and the EAT, the Act provides for the TPC to have two additional members; one, appointed by the Lord Chancellor, who has experience of advising on ET matters; and a second, appointed by the Lord Chief Justice, who has experience as a judicial or non-legal panel member of the ETs.

Allow for the delegation of judicial functions in the ET and the EAT to legal case officers

54. The measures also include provision enabling delegation of certain judicial functions to authorised case officers. Such provision was made for tribunals in the unified structure by the Courts and Tribunals (Judiciary and Functions of Staff) Act 2018, and will now be extended to the ETs and EAT.

Make the Lord Chancellor responsible for making the statutory framework for composition of employment tribunals and EAT

55. The measures also include provision to replicate for the ETs the arrangements used for determining the composition of panels in the FtT and UT. This will enable panel composition to be more easily tailored according to the specific needs of users and the complexities of the case, streamlining the handling of cases while continuing to ensure that the tribunals’ decisions are fair and informed.

Transfer responsibility for the remuneration of ET judges from the SoS BEIS to the Lord Chancellor

56. The SoS for BEIS currently has responsibility for remuneration for members of the ETs and EAT. Given the transfer of other responsibilities in relation to the ETs and EAT to the Lord Chancellor, it is considered appropriate for responsibility for remuneration of the ET judiciary to follow; consequently, the measures include provision to transfer the responsibility for the remuneration of the ET judges from the BEIS Secretary of State to the Lord Chancellor. This will produce a result in line with existing provision in the Tribunals, Courts and Enforcement Act 2007 which provides that the Lord Chancellor is responsible for remuneration, pay and expenses of judges and members of the First-tier Tribunal and Upper Tribunal.

Coroner’s Courts

57. Coroners are independent judicial officeholders who have a duty to investigate deaths reported to them that may be violent or unnatural, that have an unknown cause or that occurred in prison or in other state detention.
58. The purpose of a coronial investigation is to determine who the deceased was and how, when and where they died. In order to do this, the coroner may hold an inquest which is a fact-finding inquiry in a court. In some cases, for example non-natural deaths in custody or other state detention, the inquest has to be held with a jury.
59. During the COVID-19 pandemic, coroners have reported backlogs of inquest cases, in particular jury and non-jury complex inquests due to social distancing regulations.

Discontinuance of investigation where cause of death becomes clear

60. Section 4 of the Coroners and Justice Act (CJA) 2009 provides that coroners can only discontinue an investigation where the cause of death has been revealed by a post-mortem examination (PM). In all other circumstances, once an investigation has commenced, the coroner has no power to discontinue it and must hold an inquest.
61. The effect of this provision is that if the coroner discovers the cause of death by means other than a PM – for example through medical records that become available at a later stage – the coroner must proceed to inquest, even though the outcome may be a foregone conclusion. This is an unnecessary step which is time consuming, costly and adds to the distress of the bereaved family. This provision will amend section 4 of the CJA 2009, broadening the circumstances in which coroners can discontinue investigations.

Power to conduct non-contentious inquests in writing

62. Each year, circa 30,000 inquests are held in England and Wales, and in a significant number of these cases, those most likely to attend (the bereaved family) are content not to attend. In practice, many hearings are held in a completely empty courtroom, with the coroner conducting the hearing to no-one (other than a recording device). This provision will give coroners the power to determine when an inquest can be held without a hearing, which could be where there is no practical need or public interest to do so, and in turn free up physical space and resources for inquests which do need a hearing. While a significant number of inquests are entirely non-contentious, there will still be cases which genuinely need a full public hearing and coroners will be required to continue to hold these.
63. Rule 23 of the Coroners (Inquests) Rules 2013 10 provides for a "documentary" or "Rule 23 inquest" which comes very close to being entirely on paper, but a limited public hearing must still take place (as per Chief Coroner’s Guidance No.29 – Documentary Inquests 11 ). The intention is for the provision to serve as a natural extension of the existing arrangement. The Chief Coroner will provide further guidance to coroners accompanying any law change, ensuring that "paper" inquests are conducted fairly and cases which require a full public hearing continue as required.

Use of audio or video links at inquests

64. During the COVID-19 pandemic, coroners have sought ways to ensure that inquest hearings could continue, while being mindful of the need to support the Government in its efforts to curb the spread of the virus. The Chief Coroner in his guidance 35 on hearings during the pandemic 12 noted that while it was possible for all parties who needed to be present to do so by virtual link, the coroner (or jury if there was one) had to be physically present at the hearing.
65. While coroners have been able to continue to conduct very routine inquests, in almost all coroner areas backlogs have built up of more complex inquests with multiple attendees, in particular jury inquests, as courts have lacked the necessary infrastructure to operate during the lockdown restrictions.
66. This provision will clarify that the Coroners Rules (made under section 45 of the CJA 2009) may allow pre-inquest reviews and inquests to take place where all participants, including the coroner, will be able to participate remotely. It will help to address issues in relation to the COVID-19 pandemic and recovery which are likely to continue for many years, in particular, help reduce the backlog quicker and contribute to the effort to stop the spread of the virus. Wholly remote hearings are allowed in mainstream courts and tribunals so this provision will bring coroner’s courts in line with them and avoid them being outliers.

No requirement for jury at inquest where coronavirus suspected

67. The classification of COVID-19 as a notifiable disease (notifiable to Public Health England (PHE) under the Health Protection Regulations 2019 for public health purposes) meant that, under section 7(2)(c) of the Coroners and Justice Act 2009 (the 2009 Act), any inquest into a death where the coroner had reason to suspect that the death was caused by COVID-19 would have had to take place with a jury. This could have had very significant resource implications for Local Authority run coroner services.
68.  Although inquests requiring a jury could have been adjourned until the pandemic had passed, this would have deprived bereaved families of swift closure and would, in any event, simply build up resource pressure for the future. The Coronavirus Act 2020 (CVA 2020) therefore modified the 2009 Act to disapply the requirement that coroners must conduct any inquest with a jury where they have reason to suspect the death was caused by COVID-19.
69. There is concern that when the CVA 2020 sunsets, coroners will be required again to hold inquests with a jury where they have reason to suspect a death has been caused by COVID-19. If there were future outbreaks of COVID-19 after March 2022, or coroners were already investigating deaths then where COVID-19 was suspected to be the cause, they would be required to hold an inquest with a jury. If coroners were required to hold jury inquests in cases where COVID-19 were suspected as the cause of death, this would add to the existing backlog of jury inquests. The intention is to replicate Section 30 within the 2009 Act when the CVA sunsets.
70. Coroners would still be able to conduct an inquest with a jury if a death was suspected to have been caused by COVID-19 under existing powers, where they think there is good reason to do so. They would still be required to hold an inquest with a jury where another notifiable disease is suspected to be the cause.
71. There will be additional provisions which will require Lord Chancellor to review this provision every 2 years and empower the Lord Chancellor to extend it if the Lord Chancellor considers it would be expedient for the coronial system for this provision to be retained longer.

Phased transition to new coroner areas

72. It is a long-standing central government and more recently Chief Coroner objective to merge coroner areas when the opportunity arises to improve consistency of coroner provision and standardise practice. Paragraph 2 of Schedule 2 to the CJA 2009 provides that a coroner area consists of a local authority area or the combined areas of two or more local authorities. Smaller areas made under previous legislation were preserved under the CJA 2009. In practice, this means that where there are a number of coroner areas within a local authority, it is not possible to merge them if that would result in the new coroner area consisting of less than the area of the local authority.
73. This has caused difficulties. For example, a local authority area which consists of three or more separate coroner areas may wish to combine all of them into one coroner area, but may prefer to achieve this piecemeal by merging one area with another as and when a senior coroner from one of the coroner areas retires. This is not possible under Schedule 2 to the CJA 2009 in its present form. Schedule 2 therefore needs minor revision to provide greater flexibility. The provision will modify Schedule 2 by way of a new transitional provision in Schedule 22 to permit two coroner areas to combine, by order of the Lord Chancellor, into one coroner area which consists of the area of a local authority or part of the area of the local authority.

Provision of information to registrar when investigation discontinued

74. The Bill was amended by the Government in the House of Lords to include a provision to enable registrars to request information from coroners to facilitate a registration where the coroner has discontinued an investigation and issued their authority for a burial or cremation to take place and a qualified informant is subsequently unable or unwilling to come forward to register. This will address an anomaly whereby, in a small number of cases, families do not register a death when coroners authorise the disposal of a body and discontinue an investigation before any formal death registration has been completed.

City of London Courthouses

75. The City of London currently provides three court buildings to HMCTS under a statutory provision. The City of London is working in partnership with HMCTS to provide a flagship new court building on Fleet Street. The Mayor’s and City of London Court and the City of London Magistrates’ Court are ageing, grade two listed buildings. Their heritage status imposes operational restrictions and they provide only four courtrooms each. The new court will be a purpose built 18 room centre with technology suitable for the needs of modern justice.
76. This measure will revoke provisions which currently place duties on the Corporation to provide county and magistrates’ court capacity at the current locations. There will be a transitional period when HMCTS is occupying existing sites and has taken on the lease of the new building and is completing fitting-out works. Court hearings will then move to the new site when it is ready for occupation; at this stage the duty on the City of London regarding the existing buildings will cease. Obligations in relation to the replacement courthouse and accommodation will be governed by contractual arrangements.
77. The Central Criminal Court has formed no part of the discussions between HMCTS and the City of London and is to remain.

Pro bono costs orders

78. A pro bono costs order is an order to make a payment to a prescribed charity (currently the Access to Justice Foundation) in respect of the representation of a party to proceedings, where that party’s representation was provided free of charge. The Bill was amended by the Government in the House of Lords to allow pro bono costs orders to be made in certain tribunals, in much the same way as they are already available in the civil and family courts. The Act will also allow the Lord Chancellor to add further tribunals through secondary legislation.