Much has been written about the government’s judicial review reform project, which has led from IRAL to a further round of government consultation, culminating in the Judicial Review and Courts Bill.
This note concerns Clause 1 (‘Quashing Orders’). This provision in the Bill has received an excellent summary, commentary and thoughtful critique from Tom Hickman. My note adds some further thoughts.
I agree that Clause 1 is an important constitutional provision that would significantly enlarge the remedial powers of the Administrative Court. On balance this should be welcomed. It seems to me that some commentators’ criticisms are overstated and the reform will have positive effects for the constitutional balance. I predict that the courts will use the power of postponement and temporal limitation sparingly, indeed exceptionally. That is certainly how they should use it. To the extent that the drafting of Clause 1 seeks to direct the courts’ discretion, this is unwise and indeed self-contradictory, since it risks stultifying the liberalising effect.
Clause 1: welcome flexibility
The principle of Clause 1 of the Judicial Review Bill should be welcomed. A power to postpone or limit retrospective effect of quashing orders, judiciously used, will beneficially enhance the celebrated flexibility of remedies for judicial review. (I gratefully adopt Professor Hickman’s point that the power’s real importance is the preservation in force of the challenged act, rather than the precise moment of the symbolic ‘quashing’). Like any expanded discretion, it could in theory be misused. But the danger of abuse of a power conferred on senior judges of the Administrative Court is surely miniscule.
Criticism of Clause 1 has suggested (among other things) that it is unnecessary, or even sinister. I disagree, on balance, with the first criticism. The provision makes a beneficial clarification. The second criticism also seems to me misplaced: albeit that certain features of the drafting of Clause 1 lend credence to it. Namely the presumption in subs (9) of the new s.29A Senior Courts Act 1981. This should be deleted from the Bill during parliamentary scrutiny. I will consider these criticisms in turn.
There is a clearly arguable view that powers to postpone quashing orders already exist, and further that (if a suitable case ever came along) courts could recognise the jurisdiction to limit retrospective effect of their judgments. A significant example of the former is Regina (Liberty) v Home Secretary (suspension of declaration of unlawfulness). Some support for the latter is found in Re Spectrum Plus (not ruling out development of prospective-only relief in a suitable case). On this see in more detail Lewis Graham’s note.
Against this view is Ahmed v HM Treasury (No 2), where the Supreme Court held that according to the logic of nullity, it would be ‘obfuscatory’ to suspend quashing of an ultra vires statutory instrument and refused to do so (see Morgan, ‘”O Lord make me pure—but not yet”: Granting time for the amendment of unlawful legislation’ (2019) 135 LQR 585). Ahmed causes sufficient doubt about the propriety (and even the conceptual possibility) of suspended relief that there is a case for explicit legislation to make clear that courts have power to suspend a quashing order and preserve the legal force of the impugned measure until the suspended quashing takes effect.
The obvious model for such a power is in the devolution legislation: i.e. the express power to limit the temporal effect of judgments holding legislation by devolved legislatures ultra vires. See e.g. Scotland Act 1998, s.102 (as applied in e.g. Salvesen v Riddell). The existence of an express statutory authorisation in the devolution settlement, and its contrasting absence in ‘ordinary’ judicial review proceedings, is a further problem for the argument that such powers anyway exist at common law. Significantly, Lord Rodger felt that Parliament should have considered conferring such powers on the new Supreme Court when it was set up by the Constitutional Reform Act 2005: see Rodger, ‘A time for everything under the law: some reflections on retrospectivity’ (2005) 121 LQR 57, 77. Lord Rodger also found it ‘surprising’ that the remedial discretion in the devolution legislation found no parallel in the (contemporaneous) Human Rights Act 1998. The premise of Lord Rodger’s analysis is that no such power exists at common law or in the court’s inherent jurisdiction, without explicit legislative mandate.
In my view then, sufficient doubt exists about the common law position to justify the proposed legislation. At the very least it clarifies a doubtful point (and arguably does effect a significant legal change). Whether it is ‘at best, a waste of legislative resources’ (Lewis Graham) is hard to determine in the abstract. Note however that Part I of the 2021 Bill (‘Judicial Review’) contains only two clauses compared to 42 clauses in Part II (‘Courts, Tribunals and Coroners’). Despite the volume of discussion about the judicial review reform project, its legislative implementation will be concise.
But its brevity should not disguise the importance of the reform. I entirely agree with Tom Hickman’s assessment of this. I do question whether Parliament is (as he puts it) inevitably one of the losers from the reform. As Professor Hickman argues, the government might no longer be forced to seek retrospective legislation to ‘cure’ a quashed measure, thereby evading the heightened scrutiny that such retrospective measures (properly) receive. That is quite true. However, as the response to Ahmed shows only too well, an immediate quashing order could sometimes oblige the government to seek (and effectively oblige Parliament to grant) emergency retrospective legislation to supply the ‘vires’ for a quashed decision, as a matter of urgency. The result, after Ahmed, was much more hurried legislation than would have ensued had the freezing order’s quashing, as the government had requested from the Supreme Court, been postponed.
In many cases this will not be a factor. But as I argued in my 2019 article, suspending an order could in appropriate circumstances actually assist full parliamentary scrutiny of curative legislation. Whether or not the protocols on retrospective legislation were formally triggered, we would expect Parliament to give especially careful consideration to a Bill containing provisions to authorise action which the courts had (otherwise) pronounced unlawful. I accept that as Professor Hickman identifies, there is a danger of courts usurping the legislative function by devising elaborate ‘transitional arrangements’. (Note that in Salvesen v Riddell the Supreme Court was careful to leave such contentious distributive matters for the Scottish Parliament to sort out.) In appropriate cases however, the court could facilitate and not pre-empt Parliament’s role.
As a concrete example, imagine a case in which a statutory instrument has been quashed because the power under which it was made, while prima facie wide enough, had not specifically authorised it: i.e. quashed for violating the principle of legality (e.g. R (UNISON) v Lord Chancellor). If the quashing were suspended to enable the government to request such specific authorisation from Parliament (amending the empowering Act explicitly to supply the ‘vires’ that the court found absent from the original legislation), this would fulfil the rationale for the principle of legality originally formulated by Lord Hoffmann. He said in R v Secretary of State for the Home Department, ex parte Simms:
the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. (at p.131)
But if such explicit authorisation were sought retrospectively i.e. following the court’s decision that it was missing, the ‘great risk’ that Lord Hoffmann identified would be absent. That the government was being conferred with such a power could hardly ‘[pass] unnoticed in the democratic process’. Quite the reverse: the risk would manifestly be before Parliament. Indeed it would be the sole focus of attention. If (as in the legislation following Ahmed) Parliament granted the legal authorisation, it would undoubtedly ‘squarely confront what it was doing’ and evidently Parliament would ‘accept the political cost’.
Courts would surely be sensitive to the constitutional risks of over-using the powers to limit the temporal effect of quashing orders. I do not deny that these risks exist and often, indeed typically, should count against suspending or limiting retrospection. I agree with Lewis Graham’s summary: ‘the rule of law would not normally be served, but may be considerably damaged, by delaying access to a remedy’. My point is that sometimes there could be good constitutional reasons in favour of such temporal limits. Judiciously used, they could contribute to full, orderly parliamentary scrutiny of ‘curative’ legislation.
A mistaken presumption
But is Clause 1 a wolf in sheep’s clothing? Is it a (well-disguised) component of the government’s much-feared assault on the Rule of Law? Mark Elliott (albeit writing before the publication of the Bill) has been scathing about the motives behind the government’s proposed remedial reform. (See further Lewis Graham’s note, questioning the ‘true nature’ of the government’s reform).
It would be rather strange for the government to seek to curb judicial power by expanding the court’s discretion. However under what would be subsection (9) of the newly inserted s.29A Senior Courts Act 1981, the court ‘must’ make a postponed or non-retrospective order where this ‘would, as a matter of substance, offer adequate redress in relation to the relevant defect’—‘unless it sees good reason not to do so’.
This provision seems misguided and should be deleted during Parliamentary scrutiny of the Bill. I see it not so much as sinister, more a pointless complication. The presumption it creates is a weak one, which can then readily be rebutted. At the first stage, the court must decide that there would be ‘adequate redress’ despite the postponement of the order, which obviously entails an evaluative exercise. Very often, an individual applicant negatively affected by an unlawful decision would surely NOT be ‘adequately’ protected by a postponed or non-retrospective order. In other cases (e.g. more ‘abstract’ challenges brought by campaign groups) this condition might perhaps be satisfied. But still there would often (I dare say nearly always) be ‘good reason’ to refuse postponement / non-retrospection. The basic proposition that unlawful acts should immediately be quashed as such, retrospectively, remains a good one. Indeed a matter of high constitutional importance—an intrinsic aspect of the courts upholding the limits on public authorities’ powers.
It is only in exceptional cases that an exception should properly be contemplated (e.g. Ahmed (No 2)). It is significant that where such powers do currently exist, courts have properly used them very sparingly. It is not a routine matter to limit the temporal effect of judgments under s.102 of the Scotland Act 1998 (albeit that ultra vires devolved legislation has itself been uncommon). The CJEU, having recognised the jurisdiction to limit the retrospective effect of its judgments, has again done so only in exceptional cases (see, for example, Banca Popolare di Cremona v Agenzia Entrate Ufficio Cremona, AG75-AG80 (AG Jacobs). I cannot attempt to summarise the EU jurisprudence here. But all courts insist on an exceptionally strong case of administrative or financial disruption to be made out by a government respondent, in order to outweigh the potential injustice of awarding the applicant a ‘hollow remedy’ (as Tom Hickman aptly puts it).
Given the new power in s.29A I would expect the High Court in ‘domestic’ judicial review cases to behave with similar caution. It would usually find that the presumption in subs (9) did not arise, or hold it to have been rebutted. That makes subs (9) a pointless complication, and it should be deleted. (Again, Professor Hickman has already advocated this, thinking subs (9) ‘muddled’ and ‘opaque’).
If I am wrong, and the presumption turned out to be stronger and/or harder to rebut, then I accept that it becomes pernicious. It would inappropriately constrain the court’s discretion. In Lewis Graham’s words, ‘disadvantaging claimants and damaging the rule of law’. To some extent, subs (9) must be designed to limit discretion. It is odd to require the court, presumptively, to do something that, hitherto, has (arguably) been a conceptual impossibility. This risks harming the section’s overall beneficial effect. It even gives the impression that there is a sinister motive behind Clause 1. It could be portrayed as an attempt to weaken judicial review (remedies), masquerading as their liberalisation.
The government’s own justification for subs (9) is weak. It states that the aim of the presumption is to encourage courts to consider temporal limitations, and thus overall ‘the Government hopes to encourage the use of the new remedial powers’ (paras 98-99 (emphasis added)). This seems odd. Courts would anyway be obliged ‘to consider’ using the new remedial powers by the submissions of counsel for respondent public authorities, in any suitable case. There is no need for a statutory presumption to replicate this role. It makes no sense to ‘encourage’ courts to limit temporal effect in cases where the respondent has not made submissions to that effect. If this is the strongest argument that can be mustered for subs (9), it is to be hoped that Parliament accepts the view of the ‘large majority of respondents [to the government consultation on IRAL] [who] argued against the use of presumptions in any circumstances, generally citing concerns over fettering judicial discretion or potential injustice to claimants if it was less likely they would receive equitable relief due to a presumption against it’ (para 94).
The Explanatory Notes published with the Judicial Review and Courts Bill contain a similar tension (not to say contradiction): on the one hand (para 19): ‘The Government acknowledges that these circumstances [for limiting temporal effect] may arise relatively rarely’. But then defends (para 21) ‘a general presumption to use these new remedial powers … unless there is a good reason not to do so’. It is puzzling, if not self-contradictory, to attempt to set up a presumption in favour of ‘relatively rare’ cases.
For all these reasons, Parliament should delete subs (9) during scrutiny of the Bill.
A minor quibble is that setting down in primary legislation an indicative list of factors such as that in subs (8) seems to me unwise, even if the danger of its becoming an exhaustive catalogue is removed by (8)(f) (‘any other matter that appears to the court to be relevant’). There is nothing in subs (8) that the courts would not, quite properly, consider in any event. Thus it seems redundant. Perhaps it can be justified as an acceleration of the process of generating guidance through case-law about how to exercise the new remedial power. Yet fully-reasoned judgments seem (to me) to provide much better guidance than a necessarily terse statutory list of factors. So I would omit subs (8) too. But it does little harm. (If it is to be retained, both Professor Hickman’s suggested additions of the effect on third parties, and constitutional implications, as factors to be considered would be valuable improvements. The need to add them shows, to me, that subs (8) is misconceived).
My conclusion is that Clause 1 is welcome, but would be greatly improved by the deletion of the presumption in subs (9).
Yet there is also a significant omission in Clause 1. The court should be expressly empowered to award compensation to applicants when exercising the power to limit the temporal effect of a quashing order. But that will be explained in a second note, following examination of the general question of compensation for unlawful government acts.
Jonathan Morgan, Reader in English Law, University of Cambridge
(Suggested citation: J. Morgan, ‘In Praise of Flexibility: Clause 1 of the Judicial Review and Courts Bill (2021)’, U.K. Const. L. Blog (23rd Sept. 2021) (available at https://ukconstitutionallaw.org/))