Judicial review ~ Quashing orders

The Senior Courts Act 1981 (as amended) contains a number of matters of historical interest. The Act has also been amended by the insertion of a new section 29A dealing with judicial review. This post looks at a little of the history to the 1981 Act and then at what the new section 29A entails.

What's in a name?

The Act began its life as the Supreme Court Act 1981 but was renamed Senior Courts Act by the Constitutional Reform Act 2005.

Today, the name Supreme Court refers

to the Supreme Court of the United Kingdom which sits in its own premises at Westminster. The modern-day Supreme Court is the creation of the Constitutional Reform Act 2005.

Before the 2005 Act took effect, the name "Supreme Court" referred collectively to the Court of Appeal, the High Court and the Crown Court and those courts are now known collectively as the Senior Courts of England and Wales.

Background to Senior Courts Act 1981:

Many provisions in the 1981 Act can be traced back to the major reforms of the courts and legal system that took place in the later Victoria period when the Judicature Acts 1873-75 created the modern High Court.

The reform was much-needed. Before the Judicature Acts there were several common law courts (with overlapping jurisdiction) whose history extended back to medieval times - Common Pleas, King's Bench, and Exchequer.  

Operating separately from the common law courts was the Court of Chancery which administered a body of legal rules known as "Equity".  Traditionally, the Court of Chancery always took notice of the legal position at common law.  "Equity follows the law" was the maxim. However, the court of chancery developed additional legal concepts - notably, the trust - and also additional remedies such as the injunction.

The Judicature Acts also brought within the High Court jurisdiction over family and probate matters as well as the Admiralty jurisdiction.

An important, and much discussed, provision is section 49 of the Senior Courts Act 1981. This provides that in the event that there is any conflict or variance between the rules of equity and the rules of the common law then the rules of equity are to prevail. Much of the discussion centres on whether the Judicature Act merged only the administration of the common law and equity. Perhaps the prevailing view is that the administration was merged which is probably borne out by the heading to section 49 - "Concurrent administration of law and equity."

Judicial Review:

The Senior Courts Act 1981 section 29 deals with "Mandatory, Prohibiting and Quashing Orders." Those are the present-day terms which replaced, respectively , the old common law writs of mandamus, prohibition and certiorari. The modern orders are some of the reemdies available to the High Court on an Application for Judicial Review - see section 31.

The Judicial Review and Courts Act 2022 (legislation.gov.uk) has brought about a significant change to "Quashing Orders."  When an application for judicial review is successful, the court will consider carefully the appropriate remedy and that may include an order quashing the challenged subject-matter which could be a ministerial or other administrative decision or, sometimes, secondary legislation. Ay such quashing order has immediate and retrospective effect.

Under the 2022 Act section 1, a quashing order need not have either immediate nor retrospective effect. The Act provides that a quashing may be deferred to a date specified in the order. Also, the court may include provision to remove or limit any retrospective effect of the quashing. Section 1 inserts a new section 29A into the Senior Courts Act 1981.

The new provisions clearly enable unlawful administrative action to be recognised by the court but nonetheless permitted to continue until the quashing takes effect. That may, in some situations, offer benefits to public finances but could leave applicants with little to see for their efforts in bringing the judicial review. Exactly how the judiciary will respond remains to be seen as cases arise.

Solicitors Misshcon de Reya took a look at the new Act and point out that the Act does not go as far as the government originally wished. The government had wanted to create a  statutory presumption to require judges to use the new powers unless there was good reason not to do so.

The proposed imposition of a presumptive or mandatory approach to remedies was widely criticised, for fear that doing so would fetter the courts' discretion when granting remedies and erode judicial review as a form of redress.

Whilst the Government rejected the argument that the presumption "is in some way dangerous", it accepted "persuasive arguments that it is in fact unnecessary" and amended the Bill accordingly. The Law Society, which petitioned for the change, has hailed the amendment as a "major win for justice and the rule of law".

Update: The Judicial Review and Courts Act 2022 (mishcon.com)

Solicitors Pinsent Masons also looked at the Act - and they note the practical implications of the Act -

"Judicial reviews may deal with an enormous range of situations, but one example of the type of case where the proposed new remedies may be relevant is where an individual challenges an instrument or scheme of wide application to thousands or millions of others.

The new forms of quashing order will offer helpful flexibility to government departments and other public bodies in how they can address the consequences of actions found to be unlawful. However, for claimants, they raise the prospect of winning a judicial review but with only a limited remedy to show for it. Given the impact on claimants left to face the effects of a public body’s unlawful actions, the courts are only likely to grant these new orders in exceptional cases where they do not impact negatively on the claimant, or the wider public interest is so significant as to outweigh that negative impact."

Other reading:

Judicial review reform | The Law Society

Weekly Notes: legal news from ICLR, 9 May 2022 - ICLR

10 June 2022