After much huffing and puffing the Government is not going to blow the house down.
Despite commissioning a wide-ranging review of administrative law, the Judicial Review and Courts Bill 2021, unveiled this week, does not include restrictions on judicial review that many had feared. Indeed, it says relatively little about judicial review.
The principal judicial review reform contained in the Bill would allow courts to suspend the effect of quashing orders and limit their retrospective effect. Initial reactions to this provision on social media and elsewhere have suggested that it is a relatively modest tweak to the judicial toolkit. In fact, the proposed reform represents a substantial increase in judicial power.
The paradox that the Government has introduced a Bill that, if enacted, would significantly increase judicial power will not be lost on readers of this blog. The Government’s reform agenda, heavily influenced by the Judicial Power Project, has been driven in large part by the perception that the courts have gotten too big for their boots. Strange, then, that the Bill will give the courts bigger boots.
In the limited space of this blog post my purpose is not to assess the merits of the proposed reform comprehensively—although I do make some critical observations and constructive suggestions—but primarily to draw attention to its nature and effect.
Suspending and limiting quashing orders
Clause 1 of the Bill would introduce a new section 29A of the Senior Courts Act 1981 that would state,
(1) A quashing order may include provision—
(a) for the quashing not to take effect until a date specified in the
(b) removing or limiting any retrospective effect of the quashing.
The proposed section goes on to provide that where a quashing order includes a provision under subsection (1)(a) “the impugned act” is “upheld” until the quashing takes effect and is to be treated until such time “as if its validity was …unimpaired” (s.29A(3), (4)).
It provides similarly that where a quashing order includes a provision under subsection (1)(b) limiting its retrospective effect, the “impugned act is …upheld in any respect in which the provision under subsection (1)(b) prevents it from being quashed”. To the extent that such acts are upheld they are likewise treated as if their validity and force had always been unimpaired (s.29A(3), (5)).
Subsection (8) sets out a number of factors to which a court must have regard in exercising such powers, which are unexceptional.
Subsection (9) then provides that if the court decides to make a quashing order and if it considers that suspending a quashing order or limiting its retrospective effect “would, as a matter of substance, offer adequate redress” in relation to the relevant defect, then such a limited order must be made unless it sees good reason not to do so. This provision is opaque. If it is meant to establish a presumption that quashing orders should be suspended and have limited retrospective effect where this would give the claimant adequate redress, at the expense of third parties, then it would be unjustified. Such a restricted order might have serious consequences for others and a presumption against their interests would be wrong. If this is not the purpose, however, then it is not apparent what it is. The subsection is muddled and it would be best omitted altogether.
Increasing judicial power
That the effect of clause 1 would be substantially to increase the powers of the courts is not a self-evident point. After all, the provisions of clause 1 are framed as enabling courts to restrict the effect of quashing orders, to render them less potent and dramatic in their consequences. But in substance the change would permit courts to exercise a quasi-legislative power including to override primary legislation.
Consider first the power to suspend a quashing order. This would permit, in effect, a Judge to rule: “this instrument (or decision) is unlawful – it is outside the powers conferred by Parliament and has no legal basis– but in my discretion I will give it temporary legal effect”. The power would not be limited to procedural defects in the decision or measure and could be used even where the measure has been found to be contrary to the express or implied words of a statute. The courts would be given a substantial power to suspend temporarily the effect of a statute or to amend temporarily the effect of its terms.
Such a power is however only a temporary expedient. To some extent it is the obverse of the courts’ well-established power to grant interim relief to suspend or injunct decisions and acts of public authorities even though this may frustrate the operation of statute. The difference, of course, is that in the latter case the court will not have determined whether or not the interim relief frustrates the statute: it will be at least reasonably arguable that it does not. By contrast, the suspension of a quashing order will confer temporary validity on an instrument or decision that has been found to be unlawful.
But it is the power to limit the retrospective effect of quashing orders contained in draft section 29A(1)(b) that is more significant and far-reaching. This would allow Judges permanently to cancel the invalidity of unlawful decisions or instruments insofar as they pre-date the court’s ruling. Again, it is not proposed that such a power would be limited to procedural or technical defects in the impugned act: it could be used even where the decision, act or instrument is found to be contrary to the express words of a statute.
Consider a hypothetical example. A public authority is conferred power under statute to prohibit large gatherings in “parks, greens and squares”. The authority makes a byelaw that prohibits gatherings in places including gardens. The court rules that this is ultra vires. Nonetheless, applying her new powers under section 29A(1)(b), the Judge rules that the byelaw should be treated as having been lawfully made at all times until she decided it had not been. In effect, the Judge would be amending the statute to include the word “gardens” in the scope of the power although Parliament had omitted it.
Moreover, the provision would empower judges in their discretion to confer validity on ultra vires acts and decisions even where this would cancel private rights. Individuals might have claims in restitution, for example for unlawful charges, or in damages such as for false imprisonment, arising from the unlawfulness found by the court; or they might have a defence to regulatory or criminal proceedings. It is not only wrong in principle for such rights to be capable of being overridden by judicial discretion, but it would be wrong to do so in circumstances in which such persons are not represented before the court to make their case.
The Bill would therefore confer considerable additional powers on the judiciary, including in effect a power to legislate to change Acts of Parliament and alter private rights.
Indeed, it is one of the values of the orthodox doctrine of nullity that it limits judicial discretion. Whilst the consequences might work administrative inconvenience, requiring the unravelling of legal relations occasionally going back years, the alternative is inevitably to confer considerable powers on judges to re-write the law retrospectively. That is what the proposed section 29A(1)(b) would do.
At present, if the consequences of a judicial ruling that an instrument or decision is unlawful are considered to be seriously administratively problematic or otherwise contrary to the public interest, it generally falls to Parliament to remedy the situation.
Thus, for example, in the early nineties the House of Lords ruled that regulations imposing tax on building societies had been ultra vires. Faced with substantial restitutionary claims from building societies, Parliament retrospectively validated the regulations; but it did so in a careful way, exempting building societies who had challenged the levying of the tax but not those who had jumped on the bandwagon after claims had been won. Similarly, in 2013 the Supreme Court held that regulations imposing penalties on persons claiming jobseekers’ allowance who failed to undertake unpaid work were ultra vires. Parliament enacted retrospective legislation to validate historic benefit deductions as repayment was considered an unjustified claim on public funds.
The new Bill would obviate the need for retrospective legislation of this sort. Courts could step into Parliament’s shoes and tailor the retrospective impact of quashing orders themselves. The examples that I have given indicate that this could draw courts deep into difficult social policy and economic issues. Indeed, the more substantial the likely consequences of a judicial finding of invalidity the more likely that substantial social and economic policy issues will arise.
A further point is rather more technical but needs to be spelt out. To do so, it requires a little more detail about the nature of quashing orders. In most cases, quashing orders do not in fact have any legal effect. Once a court has found an instrument or decision to be unlawful it is of no effect in law, and this is the case whether a quashing order is made or not. The object of a quashing order is merely, “to make it quite plain” that the measure has no effect (A v HM Treasury  2 AC 534, 690 at  (Lord Phillips PSC)).
There are nonetheless some occasions when a quashing order does have legal effects. Planning enforcement notices are an example: it is an offence to comply with such a notice unless it has been quashed (R v Wicks AC 92). Other specific statutory regimes create instruments that are valid unless quashed.
But the situations where quashing orders actually have legal effects are relatively few. In most cases, making a quashing order is no more than an emphatic way of marking that the measure is void ab initio.
With this in mind, let us consider again clause 1. It is now apparent that the effect of clause 1 would not be to allow courts to suspend the legal effect of quashing orders or restrict the retrospective legal effect of such orders. If this was the effect of clause 1 it would have limited scope of application, for the reason I have just explained. Rather, the effect of clause 1 is to enable quashing orders to be used as a vehicle for courts to, (i) confer temporary validity on unlawful decisions and instruments, and (ii) permanently to confer validity on unlawful decisions and instruments for periods in the past.
That this is how clause 1 would work is clear from the way that subsections (3), (4) and (5) of proposed new s.29A would operate to “uphold” measures where the power under s.29A(1)(a) or (b) has been exercised and how they connectedly confer validity upon measures that have been upheld. The clauses operate to confer validity on acts or decisions even if a quashing order would not ordinarily have had any legal effect on their validity.
This emphasises that the power conferred by clause 1 is not a simple tweak to quashing orders. It goes much further than that. If used regularly, such power has the potential to make a significant change to the way judicial review currently works.
Some may point out that courts already have tools by which they can sometimes allow unlawful actions to stand: through time limits for commencing claims, rules on standing and the discretionary nature of remedies. However, as I have sought to explain the proposed new powers would go a great deal further.
Winners and losers
Who are likely to be the winners and losers from the proposed reform? I will focus my comments on proposed section 29A(1)(b).
From the Government’s perspective, the power in s.29A(1)(b) would have obvious value in enabling it to avoid the full consequences of executive decisions being unlawful. As I have explained, absent that power, the Government often needs to introduce primary legislation to limit the retrospective consequences if it considers these to be contrary to the public interest. Introducing legislation is inconvenient and disruptive.
However, if the Government can persuade a court to restrict the consequences of invalidity and thereby it avoids the need to introduce a Bill to Parliament, this is not only more convenient for the Government, it also sidesteps the scrutiny and accountability that is entailed in marshalling a Bill through Parliament. This point is of additional importance because the form of legislation that the Government would need Parliament to enact would be retrospective legislation. Parliament and its committees exercise special vigilance over legislation of this sort. Law Officer’s consent must be obtained for such measures (see the Guide to Making Legislation (CO, 2017)). The House of Lords Constitution Committee has stated that there is a heavy onus on the Government to justify retrospective legislation and that it must show that there is a compelling reason in the public interest for Parliament to enact it. It has identified legislation that seeks to retrospectively confer authority on Government actions as a particular suspect category of retrospective legislation (e.g. 4th Report of Session 2015-16 Energy Bill at -).
The effect of new s.29A(1)(b) would therefore allow the Government to seek to avoid the heightened Parliamentary scrutiny and democratic accountability that attaches to primary legislation introduced to give retrospective validity to decisions or acts of public authorities. I have given examples in the previous section in the context of tax and benefits sanctions where primary legislation was in the past necessary but which, if clause 1 becomes law, in the future it may not be.
Parliament is therefore a loser of this reform. It will be ceding legislative power to the courts and potentially losing an important aspect of its oversight and scrutiny of the legality of Government action into the bargain.
As to claimants, the introduction of the powers in clause 1 would introduce a risk that even if claims succeed claimants will come away empty handed. It is conceivable that a court might remove any retrospective effect of its ruling whilst also suspending its prospective effect until such time as the defendant has been able to patch-up the defect, resulting in a hollow victory. This is likely to be a real concern in cases where what is alleged is that a public body has failed to take something into account or failed to have due regard to the statutory equality duties.
However, I do not consider that clause 1 is altogether such bad news for claimants. The new powers may assist claimants and result in greater judicial scrutiny of government acts and decisions. This is because one of the major obstacles for claimants is the house of cards problem. Where an executive instrument or decision supports numerous other decisions, such that invaliding it would have major repercussions—like removing a card from the bottom of a house of cards—courts are understandably more reluctant to entertain or uphold the challenge. It is therefore quite possible that claimants will perceive benefits in the power in clause 1 by enabling them to propose that the consequences of a claim being upheld could be carefully managed and limited.
Finally, we should consider third parties. As will be apparent from what I have said above, third parties whose rights are affected by a court upholding a judicial review could be seriously prejudiced by the proposed new power in s.29A(1)(b), including the possible cancellation of rights in private law and defences to regulatory or criminal action.
In conclusion, clause 1 of the Judicial Review and Courts Bill does not represent a restriction on judicial review or judicial power. It does not load the dice against claimants as previous legislative reform of judicial review threatened to do and as many had feared it would.
But that does not mean it does not have potentially very significant effects, demanding extremely careful scrutiny in Parliament.
In particular, proposed new s.29A(1)(b), by conferring on judges a discretion to limit the consequences of ultra vires decisions and acts, would represent a significant transfer of power to judges and potentially draw them into complex policy areas. This transfer of power would be at the expense of Parliament and the special vigilance that it exercises over legislation that would retrospectively validate unlawful government action. It would also potentially prejudice the rights of third parties.
That is not to say that judges would use the new power regularly or in ways that were controversial or unjustified. It may be that such power if enacted would be exercised very sparingly and that the courts would show the restraint that the Lord Chancellor has recently praised.
However, at least three changes might, I suggest, be considered to proposed new s.29A.
First, the removal of subsection (9).
Second, the inclusion in subsection (8) of a requirement that before exercising the new powers judges must have regard to (a) the separation of powers and in particular whether the matter would be appropriate for primary legislation enacted by Parliament; and (b) whether exercising the powers would prejudice the interests of persons not represented before the court.
Thirdly, consideration should be given to prohibition on the exercise of the power under subsection (1)(b) where to do so would remove private rights or potential defences to criminal or regulatory proceedings. If this is to be done, it should be done by Parliament.
With thanks to Professor Paul Craig, Professor Alison Young and Joe Tomlinson for their very helpful comments.
Professor Tom Hickman QC is a professor of public law at UCL and practises at Blackstone Chambers.
(Suggested citation: T. Hickman, ‘Quashing Orders and the Judicial Review and Courts Act’, U.K. Const. L. Blog (26 July 2021) (available at https://ukconstitutionallaw.org/))