UKCLA Judicial review

Gabriel Tan and Lewis Graham: One Year On From Imam v Croydon: Mandatory orders, judicial psychology and judicial review 

It is a well-understood principle that a judicial review court traditionally forbears from granting coercive orders against public authorities on grounds of mutual institutional trust, and constitutional reasons relating to the separation of powers. This is particularly so in the case of mandatory orders: whilst section 31(1) of the Senior Courts Act 1981 allows judges to grant such orders, when doing so they take the underlying decision out of the hands out of the public authority which has the democratic imprimatur to take such a decision. There has therefore, traditionally, been a particular reticence to grant mandatory orders in judicial review cases.

This position was reinforced in the Supreme Court’s important decision in Imam v Croydon, handed down in November 2023, in which Lord Sales emphasised, amongst other things, that “a quashing order is the usual remedy in public law” ([44]). It is perhaps surprising, then, that just over a year on from the UKSC’s decision, Imam has been so frequently cited as authority for the issuing of mandatory orders. In fact, all reported judgments citing Imam for the purposes of determining whether or not to grant a mandatory order, have concluded that the order should be duly granted. In this post, we explore the impact of the Imam decision on the practice of granting mandatory orders in judicial review. We examine whether this reveals something deeper about the impact of ‘leading cases’ – such as Imam on the topic of the principles applicable to the grant of mandatory orders – on judicial psychology.

The decision in Imam

The decision in Imam need only be briefly summarised. It was a case concerning when a mandatory order should be made against a local housing authority to enforce a duty owed to homeless individuals under s.193(2) of the Housing Act 1996. This was described as a “non-deferrable” duty ([37]) which was “unqualified” by reference to an authority’s resources ([40]). This latter fact was important in Imam because a central issue that arose was whether a court should take into account budgetary constraints imposed on the relevant authority.

Although it was highlighted by the Supreme Court, as is conventionally understood, that remedies in public law are discretionary, it was “incumbent on a court to exercise its discretion in accordance with principle and to avoid arbitrariness. Otherwise, the rule of law would be undermined to an unacceptable degree” ([43]).

In light of this, the court laid down several general principles relating to judicial review remedies, particularly factors that should be taken into account when considering whether to grant mandatory orders. It is useful to outline briefly the principles elucidated in Imam relevant to whether a court should exercise its discretion to grant mandatory orders for breach of a public law duty:

  • Public law remedies are discretionary. A court which finds breach of public law duty can decide, in light of all the circumstances, how individual rights and any countervailing public interests should be reconciled ([41]); 
  • The ordinary position is that a remedy should be granted. But different types of order are available, and it may be that due enforcement of the law can be sufficiently vindicated by some order other than a mandatory order ([43]); 
  • A court should not make a mandatory order requiring compliance with a statutory order where that is impossible ([48]);
  • It is a relevant factor if an authority was on notice in the past concerning non-performance of its duty but failed to react in good time ([48]);
  • The court should be careful not to make a mandatory order which has the effect of requiring an authority to divert funds from allocations made in an annual budget, as that is unduly disruptive ([62]); 
  • The court should avoid granting mandatory orders in areas which ought properly to be left to the judgment of the public authority ([63]);
  • It is a relevant factor if granting a mandatory order would distort due operation of an administrative process being carried on in the public interest to an unacceptable degree, for example by impeding good administration or causing hardship and prejudice to others who have interests which ought to be taken into account ([64]);
  • A relevant factor is the extent of the impact on the individual to whom the duty is owed. If impact of failure to comply with the duty breached is very serious and the need is pressing, a mandatory order may be justified despite wider potentially disruptive effects ([68]); 
  • It is a relevant factor if there is no sign as things stand that the authority is moving to rectify the situation and satisfy the individual’s rights ([69]);
  • Where an authority is in admitted breach of its duty, the onus is on it to explain why a mandatory order should not be made, including providing evidence of any claimed budgetary constraints (to the extent it can demonstrate impossibility to comply) ([71]-[72]).

The most striking point about the above list of factors is that, with respect, there is actually nothing particularly striking about them: they are a list of uncontroversial principles relevant to a court’s exercise of discretion that are largely well-known. The only potential exception is the point, highlighted above, relating to the relevance of budgetary constraints, which was recognised as a central issue in Imam. 

The eventual outcome in Imam was to dismiss the local authority’s appeal against the Court of Appeal’s conclusion that general budgetary constraints were not a valid excuse for the local authority’s non-compliance with its statutory duty. The Supreme Court held that a local authority’s budgetary constraints/resources could be a relevant consideration to deciding whether to award a mandatory order, but only to the extent that it can demonstrate impossibility to comply with said order ([71]-[72]). In the present case, the local authority had simply failed to provide sufficient evidence to demonstrate the impossibility that needed to be shown to avoid a mandatory order being granted against it; the Supreme Court therefore followed the Court of Appeal’s route in remitting the case to the High Court for further consideration of the issue with fresh evidence.

Aside from the point on the relevance of budgetary constraints, however, the trite nature of most of the principles identified makes the impact it seems to have created all the more noteworthy.

Mandatory orders post-Imam

The judgment in Imam was handed down on 28 November 2023. As of the end of 2024, more than 13 months later, a search of relevant datasets reveals nine cases where Imam was cited and the principles from the judgment were relevant to the issue of remedy: i.e. a positive and continuing breach of public law standards was found on the facts, Imam had been cited, and the court was tasked with identifying the most appropriate public law remedy. These nine cases are:

Out of the nine judgments, Pickford involved a scenario where the judge decided to make a mandatory order in a draft judgment, but the defendant conceded she would provide suitable accommodation prior to hand down, such that a formal order was unnecessary.  SK was a case where the judge concluded that a mandatory order “may well be appropriate” having considered the circumstances of the case, but deferred formal consideration of the issue until after other relevant matters had been canvassed. In each of the other seven cases, a mandatory order was issued by the court, citing Imam as authority. 

As such, despite the Supreme Court issuing a judgment in which it purported to emphasise the orthodox position in relation to public law remedies – namely that whether to grant mandatory orders are ultimately a matter for judicial discretion,  there is a constitutional reticence for them to be granted – it appears to have emboldened judges, causing them to issue mandatory orders each time they were directed to the Imam case. 

Mandatory orders in new contexts

A consideration of the types of cases that have applied Imam demonstrates that the judgment has been interpreted (correctly, in our view) as one intending to provide general principles to be applied when a judicial review court considers whether to grant a mandatory order, not only in respect of cases involving resource constraints, but where other factors are also in play. This is evident from the list of principles we have identified above, drawn from Lord Sales’ judgment in Imam.

There are also signs that in some cases relying on Imam, mandatory orders have been deployed in some novel, or surprising contexts. Two cases from the nine identified above demonstrate the application of the general Imam principlesto “new” contexts.

First, in Brown’s Application for Judicial Review [2024] NIKB 109, the Northern Irish High Court granted a mandatory order compelling the Secretary of State for Northern Ireland to hold a public inquiry into a death arising from Troubles-related atrocities. Although one of us has previously written to endorse Humphreys J’s view that this decision represented a “proper application of legal principle” from Imam, it bears noting that, as Humphreys J himself recognised, granting a mandatory order in this way was “unusual and exceptional”. This was also recognised by Scoffield J in Re Finucane’s Application [2022] NIKB 37, when he refused to grant a similar mandatory order in circumstances where an Article 2 breach was found for failure to properly investigate the circumstances relating to the death of Pat Finucane.

Second, In Y v Glasgow City Council [2024] CSOH 113, the Outer House of the Court of Session granted a mandatory order compelling the respondent, Glasgow City Council, to provide permanent accommodation under section 31 of the Housing (Scotland) Act 1987. This is a solid step beyond what the English courts have seen fit to provide, where any mandatory orders granted in a similar context related to non-permanent housing: see e.g. SK and Pickford (although we emphasise, again, there are no cases in which the courts have refused to mandate the provision of accommodation, permanent or otherwise). 

Impact of leading cases on judicial psychology

It is difficult to identify with any precision the reasons for the above phenomenon, if it can be so described. But it is worth considering how strange it is for one year of reported judicial decisions to all go “one way”, particularly a way which the courts have traditionally been reluctant to go, after a leading case provides trite principles on the issue which are intended to be general in application and do not, on their face, signify any new ground.

The first explanation is that judges have mis-read or misunderstood Imam: specifically, a mis-reading that sees Imam as, in any way, changing the general position towards mandatory orders – including the constitutional reticence towards such orders being used. This seems unlikely, given that in most cases, the courts’ overview of the Imam case was entirely orthodox. For example, in Y v Glasgow City Council, the Outer House expressly recognised the points made in Imam and other leading Supreme Court authority such as Craig v HM Advocate, that mandatory orders “take the decision out of the hands of the authority”, and are “considered unnecessary [in many judicial review cases] because the public authority can be entrusted to comply with a declarator”. 

The second explanation is that judges in lower courts, being closer “to the ground”, are more likely to be sympathetic to arguments relating to the issuing of mandatory relief. They are likely to experience first-hand the claimants’ frustration with public authorities, and develop something of an understanding for the claimants’ own position. The judges in lower courts, therefore, may have always wanted to provide mandatory orders for breach of public law duty, but felt hamstrung by the traditional reticence, reflected in statements of high principle, relating to their use. The handing down of the Imam judgment in November 2023 may have inadvertently relaxed that position. Thus, whilst the UKSC may have intended to provide a “business as usual” judgment, it may have in fact signalled something to the effect that is possible, and legitimate, to issue mandatory orders in judicial review cases. 

With that being said, we recognise that to know empirically if the handing down of the Imam judgment did truly relax the position in relation to mandatory orders, further research into the overall numbers of mandatory orders being considered and granted would need to be undertaken. This includes potentially looking at a dataset of cases considering the grant of mandatory orders pre-Imam to consider if the numbers post-Imam are especially unusual.

The fact also that Imam did not itself involve a refusal of a mandatory order (which we have suggested is, as a general proposition, in line with the constitutional reticence against such orders), but now holds a position as the “leading case” on mandatory orders, may also have influenced this subtle shift in approach by the lower courts. Put another way, the fact that the Supreme Court upheld the Court of Appeal’s decision, which overturned the High Court’s refusal to grant a mandatory order, might have led to it being perceived as relaxing the position in relation to mandatory orders.

Relatedly, the fact that the award of remedies in judicial review generally (i.e. not mandatory orders specifically) is a matter of judicial discretion is also a subject which merits further consideration. Could the fact of this well-known discretion, despite the constitutional reticence against the award of mandatory orders, have weighed in favour of lower court judges attaching prominence to Imam that we would suggest, is not warranted on the face of the judgment? Put simply, Imam may have had the unintended effect of “relaxing” this discretion further in the context of mandatory orders. This is surely false as a matter of legal doctrine, but the unique feature of remedies as being discretionary provides the potential to mask or overshadow any principle laid down in this area of law.

Conclusion

In Sir Clive Lewis’s (Lewis LJ) leading practitioner’s text, Judicial Review Remedies in Public Law (6th ed), he writes (at 7-013) that “[t]here is… no perceivable rule governing which remedy to use [to remedy unlawful acts] and no particular pattern emerges from the case law. It is ultimately a matter of discretion of the court”. We are sure there is a ring of truth in this statement as a matter of empirical observation, in relation to the macro picture of remedies in public law cases generally. But one issue that arises from Sir Clive’s statement is the possible tension between this apparently uninhibited discretion – given that “no perceivable rule” exists” – and the rule of law principle against arbitrariness. As we alluded to above, Lord Sales explained in Imam that lack of principle in awarding judicial review remedies would “[undermine] to an unacceptable degree [the rule of law]”.

This is one of the reasons why any type of pattern that seems to emerge – particularly one that appears to go against constitutional orthodoxy – in the award of judicial reviews is worthy of deeper attention. In this post, we have only been able to highlight the fact of the apparent developing position, drawing attention to some of its more novel features, and postulated some high-level hypotheses for its emergence. 

But this is the type of matter surely worthy of further academic study. As Joanna Bell has written, the topic of judicial review remedies has been an “intellectual blindspot” in the field of public law. The notion of an opaque discretion – where no sense can be made of the case law –in an area within public law which has, arguably, the greatest legal potential to affect the operations of public authorities, is inimical to the rule of law. It is therefore important to examine more deeply the potential factors, and principles, at play when judicial review courts exercise their discretion in this area.

Gabriel Tan, Bar Vocational Studies candidate, City Law School 

Lewis Graham, Fellow in Law, Christ’s College, Cambridge

(Suggested citation: G. Tan and L. Graham, ‘One Year On From Imam v Croydon: Mandatory orders, judicial psychology and judicial review’, U.K. Const. L. Blog (16th January 2025) (available at https://ukconstitutionallaw.org/