Judicial Review Remedies: A Need for Further Reform?
This is an analysis of current Judicial Review remedies in England & Wales, by, surveying the IRAL report and subsequent Government response. With specific focus on and critical analysis of S. 29A of the Senior Courts Act (1981) regarding Suspended Quashing Orders and its associated issues.
INTRODUCTION
Throughout this dissertation, I will be analysing Judicial Review remedies and issues surrounding them. The present author acknowledges that Cart[1] Judicial Reviews have indeed been a large part of reforms. However, given that this has been a concrete and less contentious change, it is felt that it is better to dedicate space to what is believed to be more salient issues. These being the S.29A reforms suspended quashing orders and the issues that lead from it: nullity, and codification of remedies. In conducting this analysis, chief focus will be on IRAL, Government response and S. 29 of the Senior Courts Act (1981).
There are several key tensions that will become apparent throughout this dissertation. The first being the constitutional struggle between the rule of law and Parliamentary supremacy. The judiciary firmly believes in the rule of law citing it as a key balance to the abuse of state power. A key advocate Lord Hope argued that: ‘The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based’[2], which I contend is the correct view because all organs of the state, including Parliament, derive their powers from law. Thus, state bodies must act with respect for the rule of law, or they are acting outside of their own powers. Judicial review enters here as it essentially a twin function of statutory interpretation which determines the meaning and scope of statutory powers – here it upholds the rule of law by ensuring legal powers are not exceeded.
Conversely others, advocate for Parliamentary Sovereignty, citing Parliaments unique role as the only body that can make or unmake substantive legislation. The Judicial Power Project believe that in recent years there has been ‘Judicial Overreach’ stating: ‘judicial overreach increasingly threatens the rule of law and effect, democratic government’[3]. JPP and their supporters believes this must be overturned to restore ‘balance’ to the ‘constitution’ (whatever that truly means in our uncodified constitution), the central tenet being: ‘that the decisions of Parliament ought not to be called into question by the courts and that the executive ought to be free from undue judicial interference which fails to respect political judgement and discretion’.[4]
CHAPTER 1: FOUNDATIONS OF JUDICIAL REVIEW AND THE IRAL REPORT
WHAT IS JUIDCIAL REVIEW AND BASICS OF JUDICIAL REVIEW
Judicial review is a method of challenging the decisions, acts and sometimes the failure to act of a public body. It is a legal proceeding brought in the Administrative Court (a branch of the High Court), or in certain cases, the Upper Tribunal.[5] Under Judicial Review, judges review the decision, being challenged and consider whether the law has been correctly followed by the public body. ‘Decisions’ here includes policies, practices, and failures to act which can also be challenged by JR, but for brevity these will be referred to as decisions throughout; unless it is pertinent to distinguish.
The classical basis of, Judicial Review, is based on ultra vires. Essentially, meanings that the decision-maker, whether that be Parliament, or a public body has stepped outside of the powers conferred to it by either statute or delegated legislation. Although prerogative powers exercised by the executive is usually immune to review there has been some exceptional cases where the Courts involved themselves in cases regarding the executive powers and exercising of prerogative powers, as highlighted in Miller No 1 and Miller No 2.[6] Indeed, contemporary cases and scholarly work could also indicate that the foundation of judicial review instead lies primarily in the notion of rights, particularly after the UK’s introduction of the HRA (1998) because as, highlighted in Baroness Hale, it altered the gradient between what was justiciable and non-justiciable areas of law.
In a democracy it should be anticipated that there will be tensions between the executive, the legislature and the courts. Tensions are normal and constructive, however, as elucidated by both Miller cases there is an influx ‘executive disdain’ towards the judiciary in recent years, and the executive has sought to ascertain more unchecked power. The proper relationship was expressed by Nolan LJ:
The propose constitutional relationship of the executive with the courts is that the courts will respect all acts of the executive within its lawful province, and that the executive will respect all decisions of the courts as to what its lawful province is.[7]
In more recent times we have seen a degradation in this relationship and respect between the executive and judiciary after the cases of Miller No 1 and Miller No 2[8], and it will be contended that Government concern with ‘judicial overreach’, stem from these extraordinary cases. This is evident after the Supreme Court’s decision in Miller II on prorogation, the Conservative manifesto, in a section labelled ‘Protect our Democracy’ discussed JR amongst a litany of other topics:
We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays. In our first year we will set up a Constitution, Democracy & Rights Commission that will examine these issues in depth and come up with proposals to restore trust in our institutions and in how our democracy operates.[9]
Indeed, whether wilfully or not the Conservatives are twisting the essence of democracy here for their own executive gain, especially in Miller No 2 where the issue of prorogation was key where they effectively sought to oust the jurisdiction and voice of Parliament in the matter.[10]
JUDICIAL REVIEW REMEDIES
There are several remedies[11] that can be given by JR which I will address in the table below:
THE INDEPENDENT REVIEW OF ADMINISTRATIVE LAW REPORT.
Before discussion of the Independent Review of Administrative Law report (IRAL) it is contended that there are two different aspects to review. First, there is the suggestion that basic judicial review principles have potentially, taken the wrong turn over the last 40 years and that there has been an increase in judges making what can be deemed to be political decisions. Secondly, there are concerns regarding burden on administration and good governance arising from obligations and commitment of resources needed to defend a challenge. In the interest of brevity, the focus will be on the first limb; however, there will also be mention of good administration and governance.
The review was set up under Lord Faulks, to consider whether changes were needed to Judicial review and whether the ‘constitution’ might need rebalancing. The Government had expressed concerns over several high-profile cases and in the Conservative Party Manifesto it stated: ‘we will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another or to create needless delay.’[12]
Indeed, it was also spurred as mentioned earlier by issues surrounding ‘judicial overreach’, especially regarding issues of ‘politics by another means’[13]. It can also be argued that there is indeed a political motivation around this whole judicial overreach rhetoric from the government.
The substance of review was thus: “Whether procedural reforms to judicial review are necessary, in general to “streamline the process”, and, in particular (a) on the burden and effect of disclosure in particular in relation to “policy decisions” in Government; (b) in relation to the duty of candour, particularly as it affects Government; (c) on possible amendments to the law of standing; (d)It is important to note that in the terms of reference and the consultation paper both refer to scope v exercise and create a dichotomy. However, if a distinction ever did exist it was overridden in Anisminic. Subsequently, if we were to return to this it would be a radical retrenchment of the grounds for JR.
It is contended that the IRAL report is deeply flawed. The task set for Faulks’ panel was hopelessly ambitious both in terms of subject matter and timescale. The panel was established on the 31st of July 2022 and had just 6 months in total to investigate, examine, reflect, draft and report. There were 238 submissions which when averaged out would be 39.66 submissions a month to read, investigate, examine and reflect. Indeed, even the panel itself acknowledged that the period was ‘inadequate given the complexity, scope, and importance of the issues’[14]. A better option would have a been Parliamentary Committee. Consequently, it is evident when reading the report that it is a rushed job, most evident in the reforms that are proposed: The introduction of suspended and prospective quashing orders (which as argued later the former probably already existed) and the abolition of Cart judicial review. Are or were these really the most pressing issues regarding JR? I contend not, and indeed, most of the issues present within Judicial Review, I will argue can be solved by tightening up of the system through codification, particularly around remedies.
Although, codification was considered by the panel it was done so at a surface level and they only considered the detailed list of the main grounds for review, without considering how much further it can go: ‘On balance, little significant advantage would be obtained by statutory codification, as the grounds for review are well established and accessibly stated in the leading textbooks’.[15] The panel, however, did not consider codification in a different way such as the codification of remedies. Which will be considered in Chapter 3.
IRAL REPORT AND QUASHING ORDERS
As highlighted by Bell, judicial remedies are an often-ignored part of scholarly debate in administrative law.[16] However, in IRAL there has been some more attention paid to them.
Suspended orders were notably discussed in Ahmed No 2[17] where the Supreme Court found that two statutory instruments were ultra vires and should be quashed. The government wished for the court to ‘suspend the operation of the orders’ for 6 to 8 weeks to allow some time for the legislature to properly respond to the judgments. The court majority said no, including Lord Phillips:
The ends sought by Mr Swift might well be thought desirable, but I do not consider that they justify the means that he proposes. This court should not lend itself to a procedure that is designed to obfuscate the effect of its judgment. Accordingly, I would not suspend the operation of any part of the court’s order.[18]
This passage might be understood – as IRAL appears to have done as suggesting that the use of a suspended quashing order would always be inappropriate; that the court should never do such a procedure. However, it could also be read as a statement applying only to the instant case. Simply put it could be read as saying the court will not lend itself to such a procedure in cases of this kind.
To elucidate on the matter, Lord Phillips himself had no issues accepting that the court could issue a suspended quashing order:
[The government] submitted that this court has power to suspend the effect of any order that it makes. Counsel for the appellants conceded that this was correct that concession was rightly made. [19]
Consequently, it was the application of that power in the instant case which the court reject, not its existence. Further indication comes from Lord Hope’s dissenting judgement:
These applications have made it necessary for the Court to look more closely at the question whether it has the power to make orders of that kind and, if so, whether it should do so in this case.[20]
Thus, the court was considering both whether the court had the power to suspend and whether one should be issued. It can be inferred from the language used in the majority judgements that the court answers in the affirmative for the first but negative to the second. The clearest indication is from Lord Hope:
I would hold that the Court has power to make the orders that [the government] seeks. I do not think that there is any difference of view between [the majority and minority] on that point. The more difficult question is whether it should do so. The view of the majority as Lord Philips has explained, is that this would not be appropriate.[21]
Put simply, the view of the Supreme Court in Ahmed was not closing off the possibility of suspended quashing order, merely that it was not appropriate to issue one in a case such as this, or perhaps on a wider scope in similar cases.
If the power to grant a suspended order is not a new one but already established in Ahmed (but it was simply thought inappropriate to apply) do the modifications to S. 29A change anything? For use and reference here is S. 29 of the Senior Courts Act (1981) as modified by the Judicial Review and Courts Act (2021):
29A Further provision in connection with quashing orders
(1) 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.
(2) Provision included in a quashing order under subsection (1) may be made subject to conditions.
(3) If a quashing order includes provision under subsection (1)(a), the impugned act is (subject to any conditions under subsection (2)) upheld until the quashing takes effect.
(4) If a quashing order includes provision under subsection (1)(b), the impugned act is (subject to any conditions under subsection (2)) upheld in any respect in which the provision under subsection (1)(b) prevents it from being quashed.
(5) Where (and to the extent that) an impugned act is upheld by virtue of subsection (3) or (4), it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.
(6) Provision under subsection (1)(a) does not limit any retrospective effect of a quashing order once the quashing takes effect (including in relation to the period between the making of the order and the taking effect of the quashing); and subsections (3) and (5) are to be read accordingly.
(7) Section 29(2) does not prevent the court from varying a date specified under subsection (1)(a).
(8) In deciding whether to exercise a power in subsection (1), the court must have regard to—
(a)the nature and circumstances of the relevant defect;
(b)any detriment to good administration that would result from exercising or failing to exercise the power;
(c)the interests or expectations of persons who would benefit from the quashing of the impugned act;
(d)the interests or expectations of persons who have relied on the impugned act;
(e)so far as appears to the court to be relevant, any action taken or proposed to be taken, or undertaking given, by a person with responsibility in connection with the impugned act;
(f)any other matter that appears to the court to be relevant.
(9) In this section—
“Impugned act” means the thing (or purported thing) being quashed by the quashing order;
“Relevant defect” means the defect, failure or other matter on the ground of which the court is making the quashing order.[22]
In seeking to answer this question we first must establish the decision in Ahmed. The majority held that: ‘The TO and article 3(1)(b) of the AQO were ultra vires. This means that the restrictions imposed on individuals pursuant to these Orders have been imposed without authority and are of no effect in law.’[23]
But 3rd parties had not adhered to the decision and there had been compliance with the restrictions, effectively achieving the effect of the orders. The Treasury wanted this situation to continue until the invalid restrictions could be replaced by compliant restrictions. To this end the respondents submitted that the court should suspended the quashing order for 8 weeks for the TO and 6 weeks for the AQO. Such a submission is a variation of the limited suspension that Lord Hope had proposed in Ahmed 1.[24] This was considered but it will ultimately held again it would not be appropriate to suspend any part of the court’s order:
The problem with a suspension in this case, however, the court’s order, whenever it is made, will not alter the position in law. It will declare what the position is. It is true that it will also quash the TO and part of the AQO, but these are provisions that are ultra vires and of no effect in law. The object of quashing them is to make it quite plain that this is the effect… The effect of suspending the operation of the order of the court would, or might, to give the opposite impression. It would suggest that, during the period of suspension of the quashing orders, the provisions to be quashed would remain in force. [The Respondent] acknowledged that it might give this impression. Indeed, he made it plain that this was the object of seeking the suspension.[25]
The respondent urged that the court to suspend because the effect of it would have on 3rd parties, that being that the banks would be unlikely to release frozen funds while the court’s order remained suspended. Lord Phillips comment: ‘… that if the suspensions were to have this effect this would only be because the third parties wrongly believes that it affected their legal rights and obligations’.[26]
Consequently, this hints at a problem with suspended quashing orders when it comes to the rights and obligations of 3rd parties, if an order is suspended how does it impact their procedures, legal rights and any fiduciary responsibilities they may have. Suspended quashing orders here muddy the waters and the present author agrees with the majority decision of Ahmed No 2 that it would obfuscate the judgement. Therefore, does the S. 29 improve on this?
Section 29 holds that a quashing order may include (a) ‘for the quashing not to take effect until a date specified in order’, or (b) ‘removing or limiting any retrospective effect of the quashing’. In Ahmed No 2 a specific date was given, although there was no explicit discussion regarding the retrospective effect of the quashing, although arguably the decision in Ahmed 2 can be seen to make clear the issue regarding 3rd parties so it could be interpreted to be retrospectively correcting the view that 3rd parties held.
Regarding Section 29 (8) prima facie evidence would suggest that such procedure had already been followed. However, the main issue of the suspended order not being appropriate due to their obfuscating effect is still correct even considering section 29, which does very little to reform suspended quashing orders. If anything, all it does is codify[27] and explicitly give the power to the Courts to suspend orders. Section 29 does not rectify what the present author sees as one of the main issues of quashing orders, that being the issue of suspending a quashing order when it affects a large class of people, as will be demonstrated generally[28] and as highlighted in Ahmed No 2 suspending the quashing order here would still give it legal effect until it was quashed not remedying the issue at play. In Ahmed No 2 this would create a system where if the order was suspended under Article 3(1)(b)[29] and the stated person was on the UN Security Council ‘Sanctions Committee’, list as a designated person then they would be sanction in the UK. However, because the quashing had been suspended it could be that more individuals are added to the UN list and then, they would then be added to the UK one and subject to control orders in the interest of following the UN directive whilst the order was merely suspended. The clearer option and the one that would aid in ‘good administration’ would be to quash the motion outright to avoid any confusion and to correct the defect.
SECTION 29(A) OF THE SENIOR COURTS ACT
Suspended quashing orders was a ‘new’ power added to the judicial arsenal after recommendation by IRAL and Government approval. They were implemented in the Judicial Review and Courts Act (2022) (JRCA). Clause 1 of the Bill introduced a new section 29A[30] of the Senior Courts Act 1981: Section 29A(1)(a) concerns suspension of a quashing order. It enables the court to include a provision within so that it does not take effect until a specified date, thus, enabling the court to give temporary validity to a measure which has been held to be unlawful[31]. (1)(b) provides the court with the power to permanently remove or limit any retrospective effect of a quashing order. Thus, enabling a court to validate an unlawful measure and to modify the retrospective effect of in a bespoke nature. Such powers can be used independently or in combination. Subsection (2) provides that in using the powers the court may make an order subject to conditions, the nature of the conditions and whether to make any such order subject to conditions is left to the discretion of the court, (3) provides that if the quashing order is suspended under (1(a)), the impugned act it upheld until the quashing takes effect. (4) provides that if the retrospective effect of the quashing order is removed or limited under subs (1b), the impugned act is upheld and (5) provides that where an impugned act is upheld under (3) or (4) it is treated for all purposes as if in validity and force have always been unimpaired by the defect.
Under the new subsections 3-5, if an order is suspended or its retrospective effect is removed or limited, this means that the impugned act will be treated as if its validity and force were, and always have been, unimpaired by defect. However, (6), makes clear if the order is only suspended under 1(a) once the order takes effect, the effect will also be retrospective unless an order is made under 1(b) limiting or removing any retrospective effect. Taken together, such provisions alter the object of most quashing orders from something merely declaratory, to something which may make valid what is otherwise invalid. Subsequently, this represents a significant increase in judicial power. Hickman KC argues[32] that particularly the exercise of 1(b) poses a risk ‘by conferring on judges a discretion to limit the consequences of ultra vires decisions and acts, would represent a significant transfer of power to judges and potentially draw them into complex policy areas. This transfer of power would be at the expense of Parliament and the special vigilance that it exercises over legislation’[33]
The substantive effect of clause 1 would be to substantially increase the powers of the courts, even though the provisions are framed as the courts being able to restrict the effect of quashing orders. In substance, the change permits the courts to exercise a quasi-legislative power to override primary legislation. Hickman invites us to consider this: ‘Consider first the power to suspend a quashing order. This would permit, in effect, a Judge to rule: “this instrument (or decision) is unlawful – it is outside the powers conferred by Parliament and has no legal basis – but in my discretion I will give it temporary legal effect” The power would not be limited to procedural defects in the decision or measure and could be used even where the measure has been found to be contrary to the express or implied words of a statute. The courts would be given a substantial power to suspend temporarily the effect of a statute or to amend temporarily the effect of its terms.’[34]
Hickman, here is correct that granting judges the ability to alter the retrospective effect of the order represents a significant addition of power. Especially his analysis of Clause 1 in that it grants judges quasi-legislative power. Which seems particularly odd given the judicial overreach concerns mentioned earlier.[35]
Indeed, as evident by own research on BAILII, there has only been three cases[36] where they have been used since its introduction well over a year ago. In Article 39[37], it was the claimant who sought the remedy of a suspended quashing order but ultimately it was held that ‘whether immediate or suspended, as quashing order would not provide the real relief which the claimant seeks’[38]. In Bailey and Sheakh they were merely alluded to by the courts as possible remedies that could be given. [39] Consequently, this power has not yet been used by the courts either because they are unaware of how best to administer the remedy (in which case codification of remedies could aid in judicial decision making) or because the remedy of suspending a quashing order has little to no effect in terms of remedial outcomes.
There are however some issues that the present author can envisage regarding suspended quashing orders. In the case of defective regulation, where the bar of sufficient redress is met by providing relief only to the claimant and not to others. For example, monetary compensation to the claimant in return for not quashing the order. Thus, leading to the need for more cases and issues if the extent of the unlawful act is far reaching. Moreover, further issues could arise if the effect of the act is about a class of people or the physical environment. One could presume that the factors under s. 29A (8) will be able to help the Courts make their decision.
Moreover, it is indicated that the Government believes that these powers will be exercised only very rarely: ‘Consultees had mixed views on this proposal and a number argued that they struggled to conceive of many cases where such a remedy would be appropriate. The Government acknowledges that these circumstances may arise relatively rarely’[40]. But they should still be viewed as an extension of the Courts discretion. As mentioned above[41] the use of this power seems to be a rarity and there has been insufficient judgements for the law to work itself clear. A way forward may be for respondents to have clear proposals as to what will be done to correct the defect so that the Courts are inclined to suspend.
Overall, regarding suspended orders Section 29A it is argued does not necessary create anything spectacular in terms of legal reforms. Indeed, as elucidated by my application of them to Ahmed. What it does do however though is firmly codify the remedy but also still allow for remedial flexibility[42]
IRAL REPORT AND NULLITY
In Ahmed No 2 the court declined to suspend the order on the basis that it would ‘obfuscate the effect of its judgment’.[43] IRAL[44] treated the issue with pragmatism suggesting that Parliament should reverse the Court’s decision giving the courts the power to grant remedies irrespective if the act might be regarded as void:
The common law’s adherence to the “metaphysic of nullity” has never been more than half-hearted, driven as it has been less by considerations of principle and more by policy concerns to limit the operation of legislation ousting judicial review or to preserve people’s abilities to mount collateral challenges under the civil and criminal law to the lawfulness of administrative action.[45However, the JRCA does not abolish or place general limits on the concept of nullity. Instead, it makes provisions so that it does not affect the ability of the court to operate the powers. In Section 29A (5): ‘Where (and to the extent that) an impugned act is upheld by virtue of subsection (3) or (4), it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect’. Such a provision is intended to facilitate the exercise of the s.29A(1) power. However, s. 29A (5) raises questions:
1. Before the Court reaches the point of exercising 29A (3) or (4) powers it remains a question whether the court can consider either adequacy, nature and, consequences of the defect or in terms of good reason. The modification of seems slight, and it remains to be observed if the Courts will use it a basis to exclude nullity altogether.
2. Whether a distinction exists or is bound to arise between whether a decision is a nullity. E.g., where the Court decides not to exercise a s. 29A (1) power and one where it does. In the first case, the consequences of nullity may well not arise if the decision is not to give the order retrospective effect under s. 29A(1)(b).
3. Whether s. 29A (8)-(9) adequately considers the consequences of nullity. It appears this is intended under (8) (a), (c) and (d).
Unfortunately, no more of an explanation can be gleaned from the MOJ’s JR Fact Sheet and the Explanatory Notes simply states the obvious:
The sections, while empowering the court to modify a quashing order, also provide for the effects of it doing so in the context of the doctrine of nullity. This means that the underlying invalidity of the act in question may be treated as if it were valid and treated as such until the quashing order comes into effect (in regards suspended orders), or its past use may be permanently treated as if it were valid. The inclusion of clauses dealing with this point should be not be taken however to suggest that every error goes to the validity or invalidity of an action, simply that regardless of a particular error being deemed as invalidating the act the court may still suspend or alter the effect of a quashing order, which in turn would allow the act to be treated as valid, as if the error invalidating the act had not occurred.[46]
The Committee, shared the same view regarding nullity as the Supreme Court that if unlawful acts are regarded as void, suspended quashing orders is problematic. Consequently, the Review tied itself in conceptual limbo and sought to unpick the nullity itself. It sought to do so by contending that Forsyth’s view that ‘a decision-maker who decides unlawfully, does an act which he has no power in law to do; that act is thus in law no act at all. It is invalid or simply void’[47] The panel, then contended that this argument ‘overlooks the elementary distinction between a power and a duty’[48]. However, to draw contrast between the two would create the idea that public bodies and Government can act still act within their power without having regard for their duties.
An important issue I wish to highlight here would be how this new reformed quashing order would interact with the common law doctrine of nullity. Traditionally, once a decision was quashed it was considered to have always been null; if a quashing order is suspended or indeed prospective how does this work with nullity? Regarding, suspended orders, how does it work retrospectively and with prospective orders how does this interact with nullity?
Nullity essentially gives the courts a binary choice between something being wholly invalid or wholly valid, there is inherent inflexibility regarding how courts can decide this. Whilst reforming quashing orders can help with this inflexibility it only solves half the problem. If, reforms to nullity do not follow then in effect there will always be ‘what if’? regarding suspended quashing orders and its impact to nullity.
CHAPTER 2: GOVERNMENT RESPONSE TO IRAL
As mentioned in my introduction there is a tension regarding ‘judicial overreach’. It once against assumed centre-stage with the Lord Chancellor stating that:
The panel’s analysis identified a growing tendency for the courts in Judicial Review cases to edge away from a strictly supervisory jurisdiction, becoming more willing to review the merits of the decisions themselves, instead of the way in which those decisions were made. The reasoning of decision makers has been replaced, in essence, with that of the court. We should strive to create and uphold a system which avoids drawing the courts into deciding on merit or moral values issues which lie more appropriately with the executive or Parliament[49].
This was the backdrop to the MOJ’s discussion concerning JR and the constitution. It was premised on the assumption that there was a problem of judicial overreach.
However, this comment was not supported by Lord Faulks who in an interview by J. Rozenberg stated: ‘No, I don’t think it really was our finding. I think we found that there were one or two cases, which we particularly pointed out, where there was considerable tension between what was legitimate to be considered by the courts and what was really a matter of politics. But those are particular cases. We did not think that there was an overall trend that you could extract from those particular cases’[50] and ‘… But it’s one thing to say, well, there are one or two cases the result of which is questionable – to then go on and conclude that there’s an overall drift in one particular direction. And I think there’s a slight danger that you can go from the particular to the general’[51]. Faulks, here has made the correct observation and one that shows the Lord Chancellor’s foreword to be a worrying and potentially misguided comment, one which was repeated in the press release[52]. Potentially, elucidating a concerted effort to frame the conversation how they want; back on to the supposed issue of judicial overreach.
The Government response to the IRAL recommendation for suspended quashing orders highlighted by interpretation of respondents’ comments that ‘suspended quashing orders’ could have two separate remedial outcomes:
a. A suspension of the effect of a quashing order: A quashing order modified to be suspended for a limited period of time, giving a party time to make transitional arrangements to deal with the effects of the impending quashing. No conditions are attached to this order, and the order simply allows for transitional arrangements to be made.[53]
b. A conditionally withheld quashing order: a granting of a quashing order that is withheld for a period of time with conditions attached, to allow a party to take steps for the defect to be corrected by satisfying those conditions. If the conditions are fulfilled, then the quashing order will not come into effect. This potentially allows the public body to obviate the quashing order coming into effect if the conditions set by the court are satisfied.[54]
Such a distinction is key and gives nuances to how suspended quashing orders can be used. The suspended quashing variant (a) is the traditional one envisaged in Ahmed and is more for when the defects are large, and the defendant needs time to remake its decision in a lawful manner. The second variant is one that the present author could envisage being used for smaller defects.
Indeed as the Government response indicated suspending the effects of a quashing order is not unprecedented they cited the Scotland Act (1998) as a key example: ‘The Court or tribunal may make an order – (a) removing or limiting any retrospective effect of the decision or (b) suspending the effect of the decision for any period and on any conditions to allow the defect to be corrected’[55] We can see that both IRAL and Government have sought to introduce their own iteration of part (b), comparatively any changes to retrospective effects of remedies was not recommended by IRAL, however, the government is very interested in the introduction of prospective-only remedies which would give the courts the option to apply a remedy in the future only, rather than retrospectively.
However, identified within the government report there is a disagreement about prospective only remedies; note that whilst the following argument is in regard to prospective overruling, it is argued that they can be applied to prospective quashing also and will be referred to as ‘prospective remedies’. The disagreement stems from the arguments set out in Re Spectrum[56],Lord Nicholls describes how prospective remedies would interfere with the development of law and the essential role of courts: ‘In the ordinary course the function of a court is adjudicative. Courts decide the legal consequences of past happenings.’[57] His Lordship further considered whether there was power to overrule prospectively, he considered practical and in principle objections to prospective remedies, though acknowledging that they were not wholly incompatible with judicial function, especially considering s. 102 of the Scotland Act 1998,[58] which as noted above can be seen as an influence on the Government policy regarding quashing orders. Lord Hope, concurred[59], at 71 – 74. However, the non-exhaustive factor clause (29A(8)(f)) set out in would enable the Courts full consideration of any factors subject to meeting clause (8)(e) and give the Courts sufficient power and a wide remit to provide an appropriate remedy.
As indicated in the Government response: ‘prospective-only quashing orders places the courts in a quasi-legislative position (making law, rather than declaring what it is and always has been)’[60]. However, it is contended that as far as the common law is concerned that the courts do already have a quasi-legislative position, the present author agrees though that the introduction of prospective only orders would heighten this and perhaps place the judiciary in a position to make decisions best made by the executive then or Parliament. Moreover, if as the IRAL report call for evidence suggests that the government wishes to improve ‘certainty and clarity’[61] then would enhancing the courts quasi-legislative position aid in this or would it simply further the judicial malaise?
CHAPTER 3: CODIFICATION
In discussions of codification what first must be addressed is the IRAL interpretation of it. After, this a more pertinent one will ensue regarding what the present author believes to be a more useful interpretation of codification. This being the codification of the remedies available for judicial review which will add the certainty and clarity[62] that IRAL sought when deciding to codify the grounds into statute. The need for both is heightened by the new suspended quashing orders issues regarding them being retrospective, which as demonstrated has muddied the waters.
The IRAL terms of reference included this question: ‘Whether the amenability of public law decisions to judicial review by the courts and the grounds of public law illegality should be codified in statute’[63]. This was then enhanced by questions in the call for evidence dossier that was circulated, in Section 2 the following questions were asked:
1. Is there a case for statutory intervention in the judicial review process? If so, would statute add certainty and clarity to judicial reviews? To what other ends could statute be used?
2. Is it clear what decisions/powers are subject to Judicial Review, and which are not? Should certain decision not be subject to judicial review? If so, which?[64]
On prima facie review in the terms of reference it appears the codification is seen merely for the sake of reform. Whereas, in the Call for Evidence it is emphasised to be clarity, as evident by both the title of the section ‘Codification and Clarity’ and the words certainty and clarity being used. Thus, this assimilates better with the proposal that codification of the remedies available in judicial review would be a better way forward to meet these goals as opposed to codification of the amenability of public law to JR or indeed the grounds of appeal as will be demonstrated in this chapter.
In addressing the first limb of this we must first discuss the grounds for JR. Lord Diplock established thusly:
…one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call "illegality" the second "irrationality" and the third "procedural impropriety” That is not to say that further development on a case-by-case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of "proportionality" which is recognised in the administrative law of several of our fellow members of the European Economic Community.[65]
One could suppose that S. 1 JRCA Act (2021) which sets out these three heads might provide a degree of certainty in that it re-iterates them for a wider audience. However, I fail to see how in terms of clarity any progress will be made.
Unfortunately, many see codification as a way limiting judicial review[66]. However, before addressing the concerns about codification we first must address the different variations of codification.
There are to my mind three potential approaches to codification. The first two are discussed in IRAL and are: a statement of general principle and a detailed list of the main grounds for review. I will discuss the first two in turn.
A statement of general principle is the first approach and the example used is the Barbados Administrative Justice Act 1983 which provides:
“The grounds upon which the Court may grant relief by way of the remedies mentioned in this Act include the following:
(a) that an administrative act or omission was in any way unauthorised or contrary to law;
(b) excess of jurisdiction;
(c) failure to satisfy or observe conditions or procedures required by law; (d) breach of the principles of natural justice;
(e) unreasonable or irregular or improper exercise of discretion;
(f) abuse of power;
(g) fraud, bad faith, improper purposes or irrelevant considerations;
(h) acting on instructions from an unauthorised person;
(i) conflict with the policy of an Act of Parliament;
(j) error of law, whether or not apparent on the face of the record;
(k) absence of evidence on which a finding or assumption of fact could reasonably be based; and
(l) breach of or omission to perform a duty.”[67]
This approach has the benefit it being clear, however, what would the point of this be? It would simply be a reiteration of CCSU and therefore it would be innocuous.
Another approach would be to list the grounds for review specifically, an ‘all-encompassing’ model. This would be a more serious attempt at codification and would be similar to the South African Promotion of Administrative Justice Act (PAJA).[68] However, after consideration it would become clear that the legislation that would be derived from it would become so lengthy, detailed and technical so as to make it inaccessible to the average individual. Consequently, not meeting certainty or clarity.
In the 1960s and 1970s the Federal Government of Australia enacted the Administrative Decisions Judicial Review Act ‘ADJR Act’ which codified most if not all the common law grounds of JR. This was welcomed at first as it provided a much simpler application procedure and additional benefits of the codification also lay in its simplicity and accessibility for administrators and courts alike. However, it has been suggested that the codification of the grounds of review in the ADJR Act has retarded the development of the common law grounds of review. In Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002, Kirby J discussed the failure of the Australian Courts to develop the common law in the same way and direction as it has been developed in England. Thus, codification of the grounds of review would be unsuitable.
The codification of remedies is a crucial consideration that the author finds significant. This importance arises from the introduction of new remedies, such as suspended orders, which may require comprehensive codification. While there has been some codification due to the explicit grant of power to the courts, a more extensive approach is possible. A 'Judicial Remedies Act' could codify all remedies without limiting their application. Section 29A (8(f)), for instance, already allows the court to consider "any other matter that appears to the court to be relevant," when it comes to exercising power providing flexibility for wide-ranging remedies, combinations, or innovative solutions. The author cannot see why such a clause could not also be added to a codifying act.
CONCLUSION
In this dissertation, a comprehensive exploration has been undertaken to examine the available remedies in Judicial Review. In conducting this review, I have dissected the S. 29A (Senior Courts Act (1981) reforms with focus on the implications of suspended quashing orders and its interaction with nullity. Whilst I am aware that there were other fertile areas of discussion. I believed that suspended quashing orders was the better area of discussion as it is the only real changes ushered in by the JRCA (2021). It facilitated discussion regarding S. 29A and nullity. It also allowed an important discussion on codification and allowed proposal of a codification of remedies into a ‘Judicial Remedies Act’.
The introduction of S. 29 which marked a notable departure from traditional Judicial Review, endowing, the judiciary with the authority to suspend the effects of quashing orders as well to change at their discretion the retrospective effects of the order. Thus, giving the judiciary significant power. As analysed earlier this seems contradictory with the supposition that there was judicial overreach. Put simply, if there was actual concrete judicial overreach, I find it hard to comprehend then that the executive would then give even greater remedial flexibility and power to the Judiciary. S.29A interaction with nullity and indeed its general application is still arguably conceptual. Legal scholars will have to see when and if the powers are used to gain a better appreciation of its application and interaction.
Codification emerges as a pivotal theme within this discussion. As noted in the IRAL terms of reference and call for evidence there was an overarching want for clarity and certainty. The codification discussed by IRAL did not in my mind move the discussion nor the act of codifying enough. Consequently, I propose that a codification of judiciary remedies whilst still allowing flexibility perhaps with a catch all clause (‘whatever else the court finds suitable to remedy this situation’)[69] would be more a meaningful means of codification. Especially, considering the introduction of remedies that are as demonstrated vague which could lead to an imprecise or unintended application. Thus, codification of them could help and would meet the wants of certainty and clarity.
Overall, this illuminates the complexities inherent within Judicial Review and in reform. Particularly, with the introduction of new remedies that add further complexity. Such as suspending quashing orders where they could be remedies by specific perform (e.g., monetary compensation); then as analysed this can be detrimental when the defect is wide ranging. Moreover, Hickman elucidates that Clause 1 grants quasi-legislative powers to the judiciary as they can give temporary legal effect to defective legislation. However, as with suspended orders more generally this is not something that has been practically tested. Thus, highlighting the challenge of bridging theory and the practical application of it, which has implications for legal certainty. The present author suggests it is best remedied if not fully at least in part by codification of judicial remedies where the judges, academics and politician can have the space to properly discuss remedies; all aspects of it including any unintentional remedies. Another option would be establishing a full Parliamentary committee[70] such as the one that created the Civil Procedure Act (1997).
FOOTNOTES
[1] R (on the application of Cart) v The Upper Tribunal [2011] UKSC 28.
[2] Jackson v HM Attorney General [2005] UKHL 56, LJ Hope, [107].
[3] http://judicialpowerproject.org.uk/about/ Accessed 1st August 2023
[4] http://judicialpowerproject.org.uk/about/ Accessed 1st August 2023
[5] These cases include decisions taken by immigration authorities and by First-Tier Tribunal is there is no onward right of appeal.
[6] R (Miller) v Secretary v Secretary of State for Exiting the European Union [2017] UKSC 5; R (Miller) v The Prime Minister [2019] UKSC 41.
[7] M v Home Office (1992) LJ Nolan at [314]. This was based on formulations made by counsel throughout the case. Emphasis added.
[8] R (Miller) v Secretary v Secretary of State for Exiting the European Union [2017] UKSC 5; R (Miller) v The Prime Minister [2019] UKSC 41.
[9] Conservative Party Manifesto (2019) [48]. Emphasis added.
[10] R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [57].
[11] Remedies as set out in S. 31 of the Senior Courts Act 1981 (A-C).
[12] Conservative Party Manifesto, (2019).
[13] See Lord Reed’s evidence to the panel: Reed (2020). The phrasing of ‘politics by another means’ is derived from case law R (Wilson) v The Prime Minister (2019) [56].
[14] Independent Review of Administrative Law (2021) [1]
[15] IRAL, 1.43.
[16] J. Bell, Remedies in Judicial Review: Confronting an Intellectual Blindspot
[17] Ahmed v HM Treasury (No 2) [2010] 2 AC 534.
[18] Ahmed v HM Treasury (No 2) [2010] 2 AC 534. LJ Phillips [8]. Emphasis added.
[19] Ahmed [4], Phillips LJ Giving the majority opinion.
[20] Ahmed [18]
[21] Ahmed [18], Hope LJ. Emphasis added.
[22] Section 29A Senior Courts Act (1981) as modified by the Judicial Review and Courts Act (2021).
[23] HM Treasury V Ahmed No2 (2010) UKSC 5 [1]. TO (Terrorism (United Nations Measures) Order (2006)), AQO (Al-Qaida and Taliban (United Nations Measures) Order (2006)).
[24] HM Treasury v Ahmed No1 (2010) UKSC 2 LJ Hope at [84]
[25] Ahmed No 2 [4].
[26] HM Treasury V Ahmed No 2 (2010) UKSC 5, LJ Phillips [8].
[27] For a more detailed look at codification, please see the final chapter on codification where it will be discussed in greater detail.
[28] Further demonstration will come within the next section which will critically analyse in depth Section 29 (Senior Courts Act).
[29] Al-Quaida and Taliban (United Nations Measures) Order (2006).
[30] See above (n.22) for the text of S. 29A in full.
[31] Judicial Review and Courts Act 2022. 1 “Quashing Orders”, 1 (1a).
[32] ‘Quashing Orders and the Judicial Review and Courts Act’, UK Constitutional Law Blog (26th July 2021). https://ukconstitutionallaw.org/2021/07/26/tom-hickman-qc-quashing-orders-and-the-judicial-review-and-courts-act/ Accessed 1st August (2023)
[33] Ibid.
[34] All references and quotes from Hickman will be from here (unless stated otherwise): https://ukconstitutionallaw.org/2021/07/26/tom-hickman-qc-quashing-orders-and-the-judicial-review-and-courts-act/. Accessed 1st of August (2023).
[35] See introduction and above (N. 3 and 4).
[36] Article 39, R v Secretary of State for Education [2022] EWHC 589 (Admin); Bailey v Secretary of State for Justice [2023] EWHC 821 (Admin); Sheakh R v London Borough of Lambeth Council [2022] EWCA Civ 457.
[37] Article 39 v Secretary of State for Education [2022] EWHC 589 (Admin)
[38] Article 39 [16].
[39] Bailey [10], Sheakh [25].
[40] JRCA (2022) ’Explanatory Notes’ [19].
[41] See above (nn. 36, 37 and 38).
[42] Section 29A (8(f)).
[43] Ahmed v HM Treasury (No 2) 2 AC 544 [8].
[44] IRAL 3.59-60.
[45] Ibid.
[46] Explanatory Notes, Para. 22 Explanatory Notes
[47] C. Forsyth “The metaphysics of nullity”: invalidity, conceptual reasoning and the rule of law” in Forsyth and Hare (eds), The Holdan Metwand and the Crooked Cord: Essays in Honour of Sir William Wade QC (OUP, 1998), 142.
[48] IRAL 3.61.
[49] Judicial Review Reform, The Government Response to the Independent Review of Administrative Law, CP 408, 2021. [2] Henceforth MOJ response.
[50] https://rozenberg.substack.com/p/faulks-defends-judicial-review
[51] Ibid.
[52] https://www.gov.uk/government/news/judicial-review-consultation-launched
[53] Judicial Review Reform Consultation, The Government Response, (2021). [65]
[54] Ibid
[55] Scotland Act (1998) [102] (1).
[56] Re Spectrum Plus Ltd [2005] UKHL 41.
[57] Re Spectrum, LJ Nicholls [4]
[58] Re Spectrum [12] – [17], See §§ [26-38] for discussion about the practical difficulties.
[59] Re Spectrum, LJ Hope [71]-[74].
[60] Government Response [76]
[61] Call for Evidence (Section 2 – Codification and Clarity) – IRAL: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915905/IRAL-call-for-evidence.pdf
[62] IRAL, Call for Evidence [3]. Emphasis added.
[63] Terms of Reference – IRAL: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915624/independent-review-admin-law-terms-of-reference.pdf
[64] Call for Evidence (Section 2 – Codification and Clarity) – IRAL: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915905/IRAL-call-for-evidence.pdf
[65] CCSU v Minister for the Civil Service [1985] AC 374.
[66] See M. Elliot, “The Judicial Review II: Codifying Judicial Review – Clarification or Evisceration?”, https://publiclawforeveryone.com/2020/08/10/the-judicial-review-review-ii-codifying-judicial-review-clarification-or-evisceration/
[67] IRAL 1.10.
[68] IRAL 1.12.
[69] Inspiration for this taken from S. 29A (8(f)) ‘any other matter the appears to the court to be relevant’.
[70] https://www.gov.uk/government/organisations/civil-procedure-rules-committee/about
BIBLIOGRAPHY
TABLE OF CASES
Ahmed v HM Treasury (No 2) [2010] 2 AC 534.
Article 39, R v Secretary of State for Education [2022] EWHC 589 (Admin
Bailey v Secretary of State for Justice [2023] EWHC 821 (Admin)
CCSU v Minister for the Civil Service [1985] AC 374.
HM Treasury v Ahmed No1 (2010) UKSC 2
Jackson v HM Attorney General [2005] UKHL 56, LJ Hope, [107].
M v Home Office (1992)
R (Miller) v The Prime Minister and Cherry v Advocate General for Scotland [57].
R (on the application of Cart) v The Upper Tribunal [2011] UKSC 28.
R (Wilson) v The Prime Minister (2019)
Re Spectrum Plus Ltd [2005] UKHL 41
Sheakh R v London Borough of Lambeth Council [2022] EWCA Civ 457
TABLE OF LEGISLATION
Al-Qaida and Taliban (United Nations Measures) Order (2006).
Judicial Review and Courts Act (2021)
Scotland Act (1998)
Senior Courts Act (1981)
Terrorism (United Nations Measures) Order (2006),
LIST OF REFERENCES
Bell, J, “Remedies in Judicial Review: Confronting an Intellectual Blindspot”, OUP (2021).
Call for Evidence (Section 2 – Codification and Clarity) – IRAL: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915905/IRAL-call-for-evidence.pdf
Conservative Party Manifesto (2019)
Forsyth, C, “The metaphysics of nullity”: invalidity, conceptual reasoning and the rule of law” in Forsyth and Hare (eds), The Holdan Metwand and the Crooked Cord: Essays in Honour of Sir William Wade QC (OUP, 1998),
https://rozenberg.substack.com/p/faulks-defends-judicial-review
https://www.gov.uk/government/news/judicial-review-consultation-launched
Judicial Power Project Website: http://judicialpowerproject.org.uk/about/
Judicial Review Reform Consultation (The Government Response) (July 2021)
Judicial Review Reform Consultation, The Government Response, (2021).
Judicial Review Reform, The Government Response to the Independent Review of Administrative Law, CP 408, (2021)|
Judicial Review Reform, The Government Response to the Independent Review of Administrative Law, CP 408, (2021)
M. Elliot, “The Judicial Review II: Codifying Judicial Review – Clarification or Evisceration?”, https://publiclawforeveryone.com/2020/08/10/the-judicial-review-review-ii-codifying-judicial-review-clarification-or-evisceration/
Quashing Orders and the Judicial Review and Courts Act, UK Constitutional Law Blog (26th July 2021): https://ukconstitutionallaw.org/2021/07/26/tom-hickman-qc-quashing-orders-and-the-judicial-review-and-courts-act/
Terms of Reference – IRAL: https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/915624/independent-review-admin-law-terms-of-reference.pdf
The Civil Procedure Rule Committee: https://www.gov.uk/government/organisations/civil-procedure-rules-committee/about
The Independent Review of Administrative Law (2021)