Overview of the Bill:
The Bill dividesinto 3 Parts and 5 Schedules.
Part 1 (Judicial Review) - Part 2 (Courts, Tribunals and Coroners) - Part 3 (Final Provisions).
The government claims that the Bill is compatible with the European Convention on Human Rights.
The remainder of this post considers Part 1 (Judicial Review).
: Part 1 (Judicial Review) :
- Quashing Orders -
A quashing order under present law -
Suppose that a decision made by a Minister is found in a judicial review to be unlawful. If the court then makes a quashing order, the legal effect under the present law is that the decision (a) has no legal effect and (b) never did have legal effect. It is a clear cut order.
It is not the concern of the judges to consider what, if anything, is to be done about actions already taken on the basis of the quashed decision. Also, the judges need not concern themselves with HOW the unlawfulness should be addressed for the future. That is, after all, a matter for Ministerial and not judicial decision.
The present system therefore keeps clear water between the judicial and the executive roles. The judges are concerned with legality and not policy. The system also provides some incentive for Ministers to be prepared to address, within a reasonable timescale, a finding of unlawfulness.
Quashing Orders under the Bill -
The Bill provides that a Quashing Order may include provision - (a) for the quashing not to take effect until a date specified in the order, or (b) removing or limiting any retrospective effect of the quashing.
An ability to delay the effect of a quashing order will allow any concerned parties to make transitional arrangements to manage the impact of the order. The phrase "a date specified in the order" could be a considerable time ahead. There is likely to be argument about this and it might enable Ministers to delay corrective action for a long period of time.
The ability to remove or limit the retrospective effect of a quashing order will mean that prior actions are not invalidated. The government claims that - "This may mitigate any detrimental effects on concerned parties whose affairs had relied on the decision until that point."
According to the explanatory notes to the Bill, a quashing order could be BOTH made to take effect from a future date AND could have any retrospective effect removed (or limited). The explanatory notes simply state - ."Subsection 1(a) and (b) of new section 29A may be used independently or cumulatively."
Clause 1(2) provides that provision included in a quashing order may be made subject to conditions. The Bill does not set out the conditions that could be imposed but an example might be that the a decision is quashed on the 30th day from this judgment on condition that no further enforcement steps are taken.
The court's discretion?
Clause 1(1) contains the words "A quashing order may include provision ..." and this indicates a judicial discretion whether to delay the effect of the quashing order or to limit the retrospective effect of the quashing.
However, Clause 1(8) mandates courts to have regard to the non-exhaustive list of factors set out in Clause 1(8).
Further still, Clause 1(9) provides that if a court is to make a quashing order, and it appears to the court that an order including provision under Clause 1(1) would, as a matter of substance, offer adequate redress in relation to the relevant defect, the court MUST exercise the powers in that subsection accordingly unless it sees good reason not to do so.
The explanatory notes state that Clause 1(9) will - "Create a broad presumption for the Courts to use the new variations of Quashing Orders where it appears to the court that as a matter of substance, they offer adequate redress in relation to the relevant defect, unless there is a good reason not to do so. "
The discretion of the judiciary will therefore be considerably fettered. The likelihood is that, in the future, most quashing orders will be suspended to allow time for Ministers to act. Also, such orders will contain provision either removing or limiting their retrospective impact.
The new provision will doubtless generate legal argument in the court with all the associated additional costs and the possibility of appeals may be increased. There is also a risk that the judiciary will be drawn into the political arena if questions are raised about how the judges exercise the new power. That would be an ironic outcome given that one aim of the government is to prevent "politics by other means."
The Law Society has indicated that it opposes prospective-only remedies which "leave the door open for righting a future wrong but do nothing for injustices from the past." The Society continued by saying that - "Removing or limiting the retrospective effect of an order would mean that nobody who has been a victim of an unlawful state action - not even the person who brought the challenge - would benefit from a ruling that the government had behaved unlawfully."
- CART Judicial Reviews -
The second area where the Bill seeks to alter the law is in relation to so-called CART Judicial Reviews. The government states that they are a "much used but rarely successful route of challenge."
The Upper Tribunal was created by the Tribunals, Courts and Enforcement Act 2007 as part of a reorganisation of the tribunal structure recommended by the Leggatt Report.
The question arose as to whether the Upper Tribunal was open to judicial review. In 2009, the High Court held that it was open to judicial review but only on limited grounds - acting in outright excess of jurisdiction or denial of a right to a fair hearing. The Court of Appeal (Civil Division) upheld that conclusion on the law though their reasons differed in part.
In 2011, the Supreme Court held that the High Court could judicially review decisions of the Upper Tribunal permission for judicial review of the Upper Tribunal to refuse permission to appeal from the First-tier Tribunal. Permission for judicial review should only be granted where the criteria for a second-tier appeal apply: that is where there is an important point of principle or practice or some other compelling reason to review the case - (see Explanatory Notes).
Similar litigation from Scotland culminated in the Supreme Court's judgment in Eba v Advocate General for Scotland.
The Bill -
The Bill - Clause 2 - will reverse the decision of the Supreme Court and will make Upper Tribunal decisions not to grant permission to appeal final, and not subject to review by any other court. The government argues that this will "free up valuable resources in the High Court and uphold the jurisdictional status of the Upper Tribunal."
The Bill also provides that a judicial review of the Upper Tribunal's decision to refuse an appeal will be possible in three situations - Clause 2(4) -
a) whether the Upper Tribunal has or had a valid applications before it under section 11(4)(b) of the Tribunals, Courts and Enforcement Act 2007,
b) there is a question as to whether the Upper Tribunal is or was properly constituted for the purpose of dealing with the application for appeal,
c) there is a question as to whether the Upper Tribunal is acting or has acted - (i) in bad faith, or (ii) in fundamental breach of the principles of natural justice.
This approach to ouster clauses has raised considerable concern. The government states that it is "confident that the measure will be sustained" and the concern therefore is that a similar approach to excluding judicial review might be taken in other areas. As the Law Society stated - "... the bill may set a precedent for government to give itself power to remove certain types of cases from the scope of judicial review which would effectively spawn a new breed of ouster clause" - New bill risks weakening checks on power | The Law Society
The Justice Gap - 27 July - Nicholas Reed Langen - 'Under Lord Reed, the Supreme Court has retreated into itself'' - the author considers that the Supreme Court has become more deferential to executive decisions and, as a result, the Judicial Review proposals in the Bill are not as extensive as might otherwise have been the case. In a post on his Law and Policy Blog, David Allen Green also discussed the same possibility - 22 July - "Explaining the attack on judicial activism that never happened - three theories'
Tom Hickman QC - UK Constitutional Law 26 July 2021 - Quashing Orders and the Judicial Review and Courts Bill
Robert Buckland - Speech on Judicial Review at Policy Exchange 21 July
Joshua Rozenberg 23 July 2021 - Fettering the Court's discretion