The government is currently pursuing reform of judicial review remedies. Out of the many possibilities canvassed over the last year or so, two proposals in particular have emerged as likely contenders for legislative action: suspended quashing orders and prospective quashing orders. In this post, I examine these proposals, alongside the court’s existing powers in relation to issuing quashing orders, in order to discern what the real impact of any legislative intervention would be.
The first proposal is to legislate for suspended quashing orders, as recently confirmed in the Queen’s Speech:
The court would be able to suspend, for a specified time, the effect of an order quashing (thus rendering no legal effect) a decision or action. This gives the public authority time to rectify the identified errors. If the errors are not rectified within the specified timeframe, the quashing order would become effective.
As the government points out, the introduction of suspended quashing orders was one of the (few) changes recommended by the Independent Review of Administrative Law (‘IRAL’).
The second policy relates to prospective quashing orders. These would treat a policy or action as void only from the time of the judgment onwards. They would not touch any past actions, including, crucially, the decisions which affected the claimant. Unlike suspended quashing orders, IRAL did not recommend this change. Regardless, the government is actively “considering whether to give discretion to judges to order a remedy to be prospective-only in nature”.
In justifying both proposals, the government invokes a broad range of grounds including judicial flexibility, legal certainty, effective administrative governance, taxpayer savings, and “the rule of law”. This post will not evaluate the merits of the proposed changes directly (many others have done so: see e.g. here, here and here). Instead, it will ask a prior question: is change really needed?
The government certainly thinks so. It seeks to “reform” the law and “introduce” powers to the judges which they do not currently have. The government may have taken its lead from the IRAL Report, which said that the courts do not currently have the power to issue suspended quashing orders:
Reform of the law on what remedies will be available in response to a successful application for judicial review would be required if the courts are to have the option of awarding a suspended quashing order, as the possibility of issuing a suspended quashing order in a common law judicial review case was ruled out by the UK Supreme Court in Ahmed v HM Treasury (No 2)
This language is echoed in a passage in the Queen’s Speech:
The courts have previously considered introducing Suspended Quashing Orders but found no common law basis to do so. Such orders (if available and used by the court) could have provided the opportunity for more flexible remedies for the claimant, defendant and individuals.
Whilst the IRAL Report did not recommend legislating for prospective quashing orders, the government uses much the same language in relation to these proposals: in its consultation it confirmed that it “is considering whether to give discretion to judges to order a remedy to be prospective-only in nature”.
The view of the government appears to be: the courts do not currently have the power to issue suspended or prospective quashing orders, so we should give them this power. But to what extent is this premise true?
Suspended quashing orders
The IRAL Report recommended that the government “should legislate to reverse the UK Supreme Court’s decision in Ahmed” which would “give the courts the option, in appropriate cases, of making suspended quashing orders”.
However, it can be questioned whether Ahmed really stands for the position which IRAL – and the government – suggests it does. In the case itself, the Supreme Court found that two statutory instruments were ultra vires and should be quashed. The government argued that the court should “suspend the operation of the orders” for six to eight weeks so as to allow some time for the legislature to properly respond to the judgment. The majority of the court said no, including Lord Phillips who said this:
The ends sought by Mr Swift might well be thought desirable, but I do not consider that they justify the means that he proposes. This court should not lend itself to a procedure that is designed to obfuscate the effect of its judgment. Accordingly, I would not suspend the operation of any part of the court’s order.
This passage might be understood – as IRAL seems to have done – as suggesting that the use of a suspended quashing order would always be improper; that the court should never lend itself to the procedure. However, it could also be read as a statement applying only to the case at hand: ‘the court will not lend itself to the procedure in this case’. It could also be read as saying ‘the court will not lend itself to a procedure in cases of this kind’.
Which is right? Lord Phillips himself seemingly had no problem accepting that the court the “has power” to issue a suspended quashing order:
[The government] submitted that this court has power to suspend the effect of any order that it makes. Counsel for the appellants conceded that this was correct and that concession was rightly made.
It was the application of that power which the court rejected, not its existence. A further clue comes from Lord Hope’s dissenting judgment at paragraph 12:
These applications have made it necessary for the Court to look more closely at the question whether it has power to make orders of that kind and, if so, whether it should do so in this case.
In other words, the court was considering both whether the court has the power to make a suspended quashing order, and whether one should be issued. Based on the language of the majority judgment, it seems the court was saying yes to the first question, but no to the second one.
The clearest evidence that the Court in Ahmed was determining whether the court should issue a suspended quashing order, rather than whether the court could do so comes from Lord Hope at paragraph 18:
I would hold that the Court has power to make the orders that [the government] seeks. I do not think that there is any difference of view between [the majority and minority] on that point. The more difficult question is whether it should do so. The view of the majority, as Lord Phillips has explained, is that this would not be appropriate.
In my view, the Supreme Court in Ahmed was not closing off the possibility of issuing suspended quashing orders. It was simply saying that it was not appropriate to issue such an order in that case (or, perhaps, in cases of that kind).
Further, we can find evidence of cases where courts have suspended the effects of quashing orders, seemingly without issue. In some cases, courts have suspended effect of such orders until an appeal could be heard. In one judicial review of a planning decision, the Court of Appeal suspended the effect of a quashing order until a new application could be properly considered. In justifying its decision to do so, the court cited the adverse consequences an immediate quashing order would have, both those parties to the case as well as third parties.
In a more recent case, the High Court ordered that legislation which was found to be incompatible with EU law “must be amended within… 6 months”. Although not quite a suspended quashing order, the court clearly considered its remedial discretion flexible enough to set a kind of ‘timer’, upon which, presumably, a harsher remedy would ‘bite’. It is hard to see why the same sort of flexibility could not be applied to quashing orders, too.
Prospective quashing orders
What about prospective quashing orders? The position here is, if anything, clearer. By 2005, Lord Hope was able to confirm that “the ability of courts to make prospective rulings… can no longer be said to be in question”; by 2010, he was able to identify “a considerable number of dicta to the effect that the court has a general inherent power to limit the retrospective effect of its decisions”. Whilst this dicta did not concern quashing orders per se (rather, it related to the possibility of applying a judicial interpretation only from the date of its pronouncement, or as Lady Hale put it, “for the Court to declare that a new understanding of the law will operate only prospectively”) the statements themselves are couched in general enough terms to be applicable more widely.
Indeed, it is difficult to detect any ambiguity in the following statement of Green J in the British Academy of Songwriters, Composers and Authors case: “It is clear that the Court has a discretion to limit the [retrospective] effects of [a quashing] Order”. Equally clear is his summing up: “I quash the Regulations in their entirety. I rule that the quashing has prospective effect”. The decision was not appealed. If Green J is right, then contrary to the view of IRAL and the government, the court does have the discretion to issue quashing orders with prospective-only effect.[1]
Implications for reform
It seems, then, that, at least to some extent, the government may be mistaken about the powers already available to the judiciary. Of course, this does not mean that the government cannot or should not legislate to clarify the scope of this power or to put its existence beyond doubt. But it does mean that we should look again at the framing of the proposals, and consider why the courts have so far been very reluctant to utilise powers which, in theory, have long been available to use them.
In each of the cases where the power to issue suspended or prospective quashing orders has been acknowledged, the courts have been keen to stress that the power should be exercised sparingly, because in the vast majority of cases it would result in significant unfairness to the parties.
In Re Spectrum Plus, the House of Lords recognised the jurisdiction to issue prospective remedies, but said that they should be applied “altogether exceptionally” (Lord Nicholls), or in a “wholly exceptional case” (Lord Hope). The retrospective effect of decisions should be “normal” (a term used by Lords Hope and Nicholls), with prospective remedies applying only where it is “the only just result” (Lady Hale) or necessary to avoid “gravely unfair and disruptive consequences” (Lord Nicholls).
This imposes a very high bar indeed, something which has been underlined in later cases in which parties have petitioned the court for such a remedy (see e.g. May LJ here and Lloyd Jones J here).
This shows that courts have been extremely reluctant to issue suspended or prospective quashing orders, not because they lack the power to do so, but because in almost all cases they have not considered it fair to do so. When judges exercise their remedial discretion, they seek to put into effect, to use Lord Bingham’s words, “the fair and just thing to do”. Suspended and prospective quashing orders have readily been available to judges, but issuing them has rarely been considered the fair and just thing to do.
So what does this mean for the government’s proposals?
Firstly, it means that we should seriously examine the government’s argument that “the Rule of Law may be best served by only prospectively invalidating [unlawful] provisions.” The judges have considered that argument and, in almost all cases, have clearly rejected it. They have considered, quite rightly, that the rule of law would not normally be served, but may be considerably damaged, by delaying access to a remedy, or insulating unlawful measures from challenge.
Secondly, it means we should be particularly conscious of the fact that the government is considering not simply legislating for the canvassed remedies, but also both to prescribe the circumstances under which they should be issued and to introduce a rebuttable presumption that these remedies should be issued instead of ‘ordinary’ remedies. It may even seek “a ‘requirement’ for prospective-only remedies as well as suspended quashing orders in certain circumstances”. Such a course would go directly against the “exceptional” character of these remedies. It would not only tightly constrain the judiciary’s existing discretion, but could require them to exercise it in a manner contrary to their own evaluation of what justice and fairness requires.
Finally, it helps shed light on the true nature of the proposals. The government presents them as a gift: they would simply “give the courts increased flexibility”, and who could argue against that? But it is a gift the courts already have, and have refused to use time and time again, citing concerns that they risk delaying or denying justice to those affected by the unlawful actions of a public body, that their use could generate uncertainty and that they are likely to operate arbitrarily. In light of this, and taking into account the wider context of other measures pursued by the government which seek to limit judicial oversight of executive-decision making (on which see here), we may question whether providing flexibility is really the government’s primary aim here.
Conclusion
In sum, I argue that both suspended and prospective quashing orders have been recognised by judges as possible remedies which are open to them in theory, and that IRAL is mistaken in saying that there is some bar to this, in Ahmed or elsewhere.
At the same time, neither remedy has been issued very frequently in practice, for reasons of justice and fairness. These reasons are solid and we should pay them close attention.
Legislating in this area might be, at best, a waste of legislative resources: simply confirming a discretion which is already established in the common law. At worst, it could amount to an unfair narrowing of remedial discretion, disadvantaging claimants and damaging the rule of law. As such, we should treat the government’s proposals with real caution.
[1] Cf. May LJ in Germany v Hughes, who suggested that “declaring quite exceptionally that a ruling should have prospective effect only is probably only within the competence of the House of Lords”
Thanks to Emma Vincent-Miller and Arabella Lang for assistance with earlier drafts.
Lewis Graham is a Research Fellow at Public Law Project
(Suggested citation: L. Graham, ‘Suspended and prospective quashing orders: The current picture’, U.K. Const. L. Blog (7 June 2021) (available at https://ukconstitutionallaw.org/))
UK Constitutional Law Association 