This is the second in a series of two posts on the remedial reforms proposed in the Judicial Review and Courts Bill (2021), which provide for courts in judicial review proceedings to grant suspended and prospective-only quashing orders.

The first post considered the general case for reform, arguing reform is justified so as to reassert a remedial approach characterised by flexibility and which calibrates remedial responses based on reasoned consideration of relevant factors. Part 1 also explained that while neither prospective-only nor suspended relief are unknown to the common law, the reforms clarify that these remedies are available and legally effective.

This post examines the bases on which suspended and prospective relief will be granted (or withheld). The analysis re-emphasises that grant of such relief will depend ultimately on the balance of considerations on the facts of the case. This reinforces the centrality of subs 8 in the proposed statutory scheme, which enumerates factors courts must consider in making remedial decisions. The analysis also demonstrates that while suspended and prospective relief can give rise to concerns, these can be accounted for by a court in its exercise of discretion, and the way orders are drafted.

By demonstrating that suspended and prospective relief are only relevant to a subset of cases, the analysis also reinforces the argument made in Part 1, that the presumption in subs 9 is unjustified. It is irrational to enact a presumption of general application when the presumed relief will not be relevant in the generality of cases.

Suspended quashing orders

A suspended quashing order postpones nullification of an unlawful act to a future date, typically to allow government time to respond to the judgment. Such relief can play an important role in certain classes of case, such as those raising constitutional matters or where invalidation would create a legal black hole. The corollary is that suspended relief will not be relevant in most cases.

It is notable that provision for suspended orders will make it relatively less likely a court will have recourse to prospective-only relief or refuse relief altogether, remedial responses which raise rule-of-law concerns. Factors such as prejudice to the public interest or good administration have grounded such remedial responses in the past. But in some cases it may be possible to accommodate such concerns by affording government time to react. It follows there would then be no reason not to ultimately invalidate the impugned act. Thus, suspended relief will ensure some relief, which serves to vindicate the principle of government under law, in circumstances where relief may otherwise have been refused (see Peachey [1966] QB 380, 418; IRAL [3.53]-[3.54]).

Let us turn to consider the factors likely to bear on the grant of suspended relief.

Constitutional matters

One of IRAL’s core reasons for recommending suspended relief, was that such orders could play an important role in prompting parliamentary involvement in matters of high constitutional importance ([3.64]). IRAL observed that some of the concerns that attended cases such as Evans, Unison and Miller II, ‘would have been substantially allayed had the remedy in those cases consisted of a suspended quashing order’ ([3.50]). What unites these cases is that they form part of a trend by which the Supreme Court has begun to identify ‘constitutional’ norms, and define the scope of legislative and prerogative powers by reference to these norms via the principle of legality or, in the case of prerogative powers, an analogous principle (Varuhas [2020] 79 CLJ 578).

This emergent practice is controversial. First, it is questionable whether it is for courts to decide what rights or values are constitutive of the polity; given judges disagree about which values are fundamental, members of society are likely to as well, so that the fairest and most respectful way to resolve these disagreements is through open, democratic processes. Second, as IRAL observed ([3.29]-[3.34]), the jurisprudence on constitutional norms does not seem to rest on any determinate or intelligible principle; for example, why is access to tribunals a constitutional right, but not the right to life? Third, in terms of statutory powers, the variants of the legality principle applied in Evans and Unison raise questions as to whether courts are giving effect to or subverting parliamentary intention (note: IRAL [3.52]).

The corollary of these concerns is that in constitutional cases it is legitimate and desirable for Parliament to make its voice heard. First, Parliament, given its democratic legitimacy, ought to play an active, and indeed the principal role, in determining what values are fundamental to British society. Second, the involvement of Parliament (with the advice of its committees, such as the Lords Constitution Committee (see IRAL [3.34])) could provide a much-needed steer to the courts as to which norms are properly characterised as constitutional, on what basis, and what the ramifications of such classification are. Third, where legislation touches on fundamentals and there are questions over what Parliament intends, Parliament should be prompted to clarify its intention. This role for Parliament coheres with the judicially-stated rationale for the principle of legality which is that it is designed to facilitate parliamentary consideration of issues of fundamental principle: Simms 131.

Thus, in a case of constitutional significance, government could undertake to put the matter before Parliament within a given timeframe (undertakings are relevant factors under subs 8(e)), and the court could order that the impugned administrative act will be invalidated by a given date, unless Parliament legislates otherwise.

Good administration

Immediate invalidation of regulations or policies, as general measures, could create a legal black hole, leaving entire fields of activity unregulated, and thus creating significant uncertainty and instability within administrative systems. Not only this but such a blunt remedial response could undermine good policy-making going forward and be counterproductive in terms of engendering lawful government action. Immediate nullification will leave government scrambling to put together a new regulatory scheme, including transitionary arrangements, in slapdash fashion in complex policy fields. Because government may not have time to fully unpack the implications of the court’s judgment, the result might very well be a new scheme once again tainted by unlawfulness. Thus, it is unsurprising courts have contemplated suspended relief specifically in cases of general measures (eg Peachey 401-403; Fishermen [53]). Such an order would provide for example that the impugned measure will be rendered invalid in three months, to allow government time to bring forward a replacement scheme.

In other cases government may be able to easily cure an identified defect, such as a procedural error, so that it would be disproportionate to invalidate the impugned measure, especially where this would cause severe administrative disruption (IRAL [3.64]). Here the order would provide that the impugned act will be invalidated by date X, unless the defect is cured by that date. This way administrative practice is brought into compliance with legal norms, and administrative disruption is avoided.

Good administration concerns are brought into consideration by subs 8(b), and are an established feature of discretion at common law (Argyll 774-775).

Public interest

Suspended relief might be justified where instantaneous nullification could seriously harm the public interest. Consider a case where terrorist asset freezing orders are held unlawful. Immediate invalidation could leave assets available for nefarious ends, potentially prejudicing national security and public safety. Consider also a situation where a large infrastructure project is initiated on the basis of a flawed process. Unwinding the project could render expended resources wasted, undermine the confidence of commercial partners, expose government to significant contractual liability, and the expected economic gains associated with the project could be squandered (Walton [104]-[105], [114]). Suspended relief could allow government the opportunity to avoid these consequences, for example by curing the procedural defect if possible, or proposing legislation.

One would not expect courts to take account of any pleaded public interest; in determining what public interests are legally salient, courts would no doubt be guided by the given statutory scheme. Courts must also be weary of bald assertions of public interest. In some cases the ramifications of quashing will be obvious enough, but in others courts must be ready to look more critically at government arguments so as to guard against opportunistic assertions of hardship.

The public interest does not find explicit recognition in subs 8. This is a significant omission. The factor is plainly relevant to suspended relief and well-established at common law (Walton [103], Argyll 774-775). The concept encompasses important principles such as certainty and finality (TN [58]; Majera [32]), which are plainly relevant to prospective relief. Moreover the public interest has been neglected in important cases concerning remedies, such as Ahmed, despite nullification potentially prejudicing important public interests. The reforms provide an opportunity to reassert the factor’s salience.

Gravity of unlawfulness

Even if, on given facts, there are factors favouring suspended relief, the gravity of the unlawfulness, which includes consideration of whether the impugned acts were deliberately or recklessly unlawful, may warrant immediate nullification, to reinforce the importance of legal constraints. The corollary is that in cases of ‘substantial compliance’ or where a breach is technical/minor or made in good faith (Argyll 774-775; Hurley [99]; Berkeley 616; Champion [58]), and there are reasons supporting suspended relief, such relief is likely to be given. The qualities of the unlawful act are rendered salient by subs 8(a), which directs attention to ‘the nature and circumstances of the relevant defect’. The clause would be clearer if it referred to the seriousness or gravity of the defect or unlawfulness; this drafting coheres more closely with the provision’s intended meaning (explanatory note at [92]). The ‘circumstances of the relevant defect’ is a rather ambiguous phrase. If it simply refers to the factual circumstances it is otiose. Subs 8 is concerned to pick out those particular aspects of the circumstances which are legally salient, to provide guidance to courts and parties.

Individual protection (and compensation?)

At common law it is well-established that one factor relevant to remedial discretion is ‘the legitimate interests of individual citizens’ (Argyll 774-775). This factor finds reflection in subs 8(c).

First, if a person’s private law rights, or HRA rights, are subject to ongoing unlawful interference, relief should not be suspended. Thus, if a person is being held in immigration detention unlawfully, they should be released at once as their right to liberty is at stake.

Second, courts have considered individual hardship in exercising remedial discretion (eg Caswell [1990] 2 AC 738, 749-750). Hardship could tell against postponing relief, such as where this would prolong the unlawful withholding of a welfare payment. Alternatively, the hardship factor could favour suspended relief. If a court finds that a pub’s alcohol licence was unlawfully renewed, invalidation could be suspended while the decision-maker reconsiders the matter, so as to avoid the pub having to cease operations in the interim.

Third, Morgan has argued that the Bill should be amended to provide for administrative compensation. Compensation would be relevant to the hardship factor: individual prejudice as a factor telling against suspended (or prospective) relief could be neutralised if the individual is compensated for any prejudice they suffer by suspended quashing. Such compensation would also be relevant to the assessment of ‘adequate relief’ in subs 9 (and see subs 10), if that clause is retained. Administrative compensation is a fraught issue, as illustrated by the Law Commission’s ill-fated project on that topic. In my view, the issue’s complexity means a Bill on quashing orders is not the place for it to be considered, especially at this late stage in the reform process. And it is unnecessary because government can undertake to make an ex gratia payment to a claimant (and their class), and this would be a relevant consideration under subs 8(e). Reviewing courts have been willing to take account of such monetary ‘accommodations’ (Coughlan [82]; Bibi [56]), and if the common law has a tradition of administrative compensation it is one based in ex gratia payments: Harlow [2010] PL 321. But in any case, in many claims more will be at stake than the claimant’s pecuniary interests.

Continuous supervision

One risk associated with suspended relief is that it could give rise to what is known in equity as the problem of ‘continuous supervision’ (Argyll Stores). That is, courts may be drawn into micro-managing the defendant towards compliance. This phenomenon is problematic generally but in public law the issues are exacerbated because it is not the court’s role within a supervisory jurisdiction to ‘monitor, regulate or police the performance [of] statutory functions on a continuing basis’ (R(P) [2004] EWHC 2027 (Admin) [32]-[33], [39]). Recent ‘litigation sagas’ illustrate the danger of courts being drawn into the policy creation process almost as active participants. Consider the slew of ClientEarth challenges to various iterations of the air quality plan, including drafts: eg ClientEarth (2013), (2015), (2016a), [2016] EWHC 3613, (2017), (2018a); (2018b).

Where an order simply provides that invalidation will be postponed until a given date, no issue of continuous supervision arises, because the date provides a clear, final cut-off. But the problem could arise where conditions are attached. For example, an order could state that an impugned regulation shall be invalidated on a given date, unless an environmental impact assessment is undertaken. The defendant may carry out an assessment, but the claimant may launch proceedings disputing whether the assessment addressed all relevant risks. All of this is to say, courts should consider the potential for continuous supervision in deciding whether to grant suspended relief and in drafting orders; in particular any conditions should be stated as clearly as possible.

Prospective quashing orders

Prospective relief must be approached with caution because such relief gives rise to rule-of-law concerns. In particular prospective orders involve treating the past effects of unlawful administrative action as permanently valid. This contrasts with suspended relief, which confers only temporary validity and culminates in retrospective quashing (subs 6). Suspended relief could lead to past unlawful effects being treated as good – because the suspension might allow government time to lead legislation which provides for this. But in such a case, the outcome would have democratic legitimacy.

There are other reasons for courts to exercise caution in relation to prospective relief, which will be addressed below. But let us consider first when such relief is likely to be granted. The best guide is past case law.

When might prospective relief be justified?

Prospective relief has featured prominently in the context of financial regulation. In Datafin [1987] QB 815, 840-842 the Court of Appeal held that relief would typically be prospective in relation to certain types of regulatory decisions, given the importance of certainty in regulated markets; third parties may have relied on and entered transactions on the basis of impugned acts; and market actors should not be kept in suspense as to the validity of regulatory acts: finality and decisiveness are to be prioritised in the financial setting. Thus, the role of remedies would be educative, identifying past errors so lessons could be learned moving forward. See also: Argyll 774-775.

More generally third-party reliance (see subs 8(d)) is a recurring theme in cases where courts have favoured prospective relief or refusal of relief (Songwriters [12]-[21]; Hurley [99]; TN [58]). In this connection, the case for prospective quashing will be strengthened where a claimant has unduly delayed in initiating proceedings; the more time that has passed since enactment of a measure, the more likely third parties will have formed expectations on the basis of it, and the greater the prejudice that may be caused by retrospective quashing (see SCA 1981, s 31(6); Caswell 749-750).

The Bill also provides the flexibility to modulate the retrospective effects of invalidation: subs 1 refers to ‘removing’ or ‘limiting’ retrospective effects. This is important when it comes to the ‘domino’ problem. Consider a case such as TN where many individual decisions were made over a significant time-period pursuant to a decision-procedure that was subsequently found unlawful. This finding could in principle have the effect that all individual decisions are automatically invalidated. But this may undermine certainty and finality, prejudice the expectations of those who have relied on the decisions, undermine confidence in public administration, and impose significant administrative burdens, as past cases are thrown open. As such a court could invalidate the decision-procedure while saving the pre-existing decisions. As TN recognises, individual decisions could still be challenged on other grounds.

The situation of an unlawful system is also a good example where suspended and prospective relief might be combined (Peachey 401-403; Fishermen [53]). Invalidation could be suspended to avoid a legal black hole, and allow government time to promulgate a new system. The court could also provide that when the old system is ultimately invalidated, this is without prejudice to the validity of individual decisions.

Concerns raised by prospective orders

The framing of court orders may also be an important way of addressing concerns raised by prospective relief. One concern is that prospective relief might rob the claimant of the fruits of their victory. This issue could be addressed by the court including a carve-out in its order, so as to alleviate any effects of unlawfulness in the claimant’s case. This could be justified on the basis that the claimant took the risk of litigation, and should thus reap the reward, and that they have served the public interest by uncovering unlawfulness. Individuals already face immense hurdles in bringing litigation; courts should be loath to impose further disincentives.

A second concern is that prospective relief could rob individuals of otherwise good claims in private law, or good defences in criminal law. This would be a very serious consequence, affecting basic rights such as individual liberty. If a person is to be denied vested rights or a criminal defence, this should be on the basis of a clear democratic mandate in statute, not an exercise of judicial discretion. Where such serious consequences would follow courts should not grant prospective relief, or they might consider framing the order so that it is without prejudice to otherwise good private law claims and criminal law defences. Even if a court considered exceptionally that there might be a case for prospective relief despite the effects on private law claims or criminal proceedings, it should favour suspended relief so as to prompt Parliament to make the call.

I note two points. First, it is an open question whether the defence of lawful justification in tort depends on legality or validity. The matter has not been the subject of serious scholarly or judicial consideration. If, as I think should be the case, the defence revolves around legality, then whether an unlawful administrative act is treated as valid pursuant to a prospective order may be irrelevant to tort defences: valid or not, the rights-infringing act shall still be unlawful, thus negativing any defence of lawful justification.

Second, not all private law claims are equal. Whereas rights in physical integrity and liberty, protected by tort, are fundamental, restitution is not generally thought to share the same status. This normative hierarchy could shape exercise of discretion. Thus, courts have used prospective relief to insulate government from restitutionary liability: Fishermen. But even negativing restitutionary liability is highly controversial. Restitution is a legal right, and notwithstanding the status of other unjust factors, the Woolwich principle has been explained on rule-of-law grounds.

If prospective quashing would result in denial of effective redress to victims of HRA violations, such relief should be refused (or a carve-out could possibly be included in the terms of the order), given the fundamental nature of HRA rights, and demands of Article 13. It is important to recall HRA claims, as rights-based claims, are of a different genus from ordinary review claims involving exercise of the supervisory jurisdiction. This difference has ramifications for the appropriate approach to remedies, as discussed here.

The foregoing matters would presumably be considered pursuant to subs 8(c), which addresses individual interests. But I agree with Hickman that there is a case for amending the Bill to explicitly rule out prospective relief which would rob individuals of otherwise good private law claims or defences in criminal law, and – I would add – effective redress for HRA violations (or at the least there should be a default setting that prospective relief does not have these effects, unless there is an overwhelming justification). Notably, while IRAL did not address prospective orders, it went out of its way to stress that any new remedial regime should not prejudice collateral challenges ([3.65]-[3.67]).

Lastly, in a case of serious unlawfulness one would expect a court to refuse prospective-only relief. The dominant concern in such a case should be strong vindication of legal norms – to be achieved by immediate retrospective nullification.

Conclusion

The foregoing analysis reiterates the argument made in Part 1: remedial decisions implicate a range of important factors, and relief should depend on reasoned and transparent consideration of those factors, rather than blunt conceptual approaches. The analysis also gives a sense of the types of cases where suspended or prospective relief may feature, and of the sorts of factors which may tell against such relief or prompt courts to attach conditions to court orders.

In my view five amendments could be considered: (i) making clear that subs 1(a) and (b) can be used cumulatively so as to combine suspended and prospective quashing (discussed in Part 1); (ii) removing the presumption in subs 9 (and also subs 10); (iii) adding the public interest as a factor in subs 8; (iv) amending subs 8(a) to refer to the seriousness or gravity of the defect or unlawfulness; and (v) ruling out prospective relief that would negative otherwise good private law claims or criminal law defences, or deprive persons of effective redress for HRA violations.

Jason N E Varuhas, Professor of Law, University of Melbourne

(Suggested citation: J. N. E. Varuhas, ‘Remedies Reform Part 2: Discretionary Factors’, U.K. Const. L. Blog (9th November 2021) (available at https://ukconstitutionallaw.org/))