Fettering the courts’ discretion

The government’s Judicial Review Bill provides only “adequate” redress

Jul 23

The lord chancellor’s Judicial Review and Courts Bill was published on Wednesday afternoon, alongside a number of supporting documents. This piece analyses the two clauses that deal with judicial review. Clause 1 modifies quashing orders. Clause 2 overturns the Cart judgment.

If you’d like to understand the rather complicated back-story, have a look at this preview first. There’s also a government fact sheet.

Quashing orders

Section 29 of the Senior Courts Act 1981 confirmed the long-standing common-law powers of the High Court to make quashing orders. Until Latin was officially outlawed in 2004, these were known as orders of certiorari.

A quashing order is one that overturns or sets aside an unlawful decision made by a minister or some other public authority. If a decision is quashed, it is as if it was never made. Actions that were taken under it are no longer valid.

Clause 1 of the new bill, if agreed, will add a new section 29A to the much-amended 1981 act. This is how subsection (1) would look:

(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.

The word “or” is a more elegant way of saying “and/or”. The bill’s explanatory notes say that “subsection[s] 1(a) and (b) of new section 29A may be used independently or cumulatively”.

Subsection (2) of the new clause allows the court to set conditions for an order made under subsection (1). These can be entirely open-ended.

Subsection (3) makes it clear that if a court suspends a quashing order under subsection (1)(a) then the decision under challenge remains valid for the period of the suspension. That sounds obvious but it’s not what the Supreme Court decided in a case called Ahmed. It applies even if the decision-maker had no power to take the decision in question.

However, subsection (6) makes it clear that once the date specified in the order is reached and the suspension comes to an end, the decision under challenge becomes void from the moment it was taken — unless the court has used its power under subsection (1)(b) to remove or limit the order’s retrospective effect.

Subsection (4) explains what happens when the court makes a prospective-only (or partly prospective-only) order under subsection (1)(b). The decision that had been challenged would be treated as valid for all purposes until the quashing order came into effect.

But subsection (5) makes it clear that this applies only to the defect, failure or other ground on which the court is making the quashing order (the “relevant defect”). So subsection (5) does not prevent other defects or failures from having an effect on the validity of the decision under challenge.

Subsection (7) allows the court to vary the date that on which a suspended quashing order will take effect.

Subsection (8) lists factors that the court “must have regard to” in deciding whether to make a suspected or prospective order. Crucially, subsection (8)(f) allows the court to have regard to “any other matter that appears to the court to be relevant”.

Then we come to subsection (9), which is the provision that caused me some concern on Wednesday. It says:

(9) If—
(a) the court is to make a quashing order, and
(b) it appears to the court that an order including provision under subsection (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.

This says, in effect, that if the court considers that a suspended or a prospective quashing order would offer adequate redress then it has to make one of those orders, unless there’s a good reason not to.

In applying that test, the court is required by subsection (10) to take into account any remedial action proposed or taken by the person responsible for the decision under challenge.

There is no doubt that subsection (9) sets up a presumption. But does it limit the court’s discretion?

It applies only if the court considers that a suspended or a prospective quashing order would offer adequate redress. If the judges don’t think it does, they can quash the decision as before.

On the other hand, under subsection (8) they must have regard to “any detriment to good administration that would result from exercising or failing to exercise the power” to make a suspended or prospective order — which seems to mean any difficulties for the government. Judges must take into account not only the interests or expectations of those who would benefit from the decision being quashed but also the interests or expectations of those who have relied on the decision. And, as I have said, they must also take account of any remedial action.

This is a pretty clear steer to the courts to make a limited quashing order wherever possible. If the judges are in any doubt, they will look at the test in subsection (9)(b), which refers to “adequate redress”. But why should the claimant have to put up with a remedy that is merely adequate? Why not “sufficient redress”, “full redress” or just “redress”?

As a matter of law, the courts will still be able to quash an unlawful decision completely, as they can now. But will this provision fetter the judges’ discretion regardless? On Wednesday, I suggested to Robert Buckland, the lord chancellor and justice secretary, that it would.

Buckland rejected that suggestion (at 31.28 on this recording). He said:

I think that any provision that absolutely retains that essential residual discretion of the court means that a discretion is present… Many claimants might think that the position will be improved as a result of what we’re doing. That essential discretion remains. So, far from it being a reduction in choice for the courts, I firmly believe that what I propose to do expands the options that they have.

Buckland’s point is that judges currently have what he called a Manichean choice between finding a decision valid and quashing it outright. Courts would be more likely to grant judicial review if they could make a quashing order that was suspended or prospective — or both.

That’s true and he’s right to say that the judges’ essential discretion remains. But I still think he is fettering it.

Practitioners see little to worry about, though. The former head of the government legal department takes a nuanced view:

Jonathan Jones @SirJJQC

Cl 1 gives the court power to postpone or limit the retrospective effect of a quashing order. I agreed with @JoshuaRozenberg yesterday that this isn't an "unfettered" discretion, because the Bill sets a sort of presumption that the power will be used & specifies relevant factors

Jonathan Jones @SirJJQC

But the clause allows the court to decide what is "adequate redress", and whether there is "good reason" not to limit the effect of an order, so overall the provision looks reasonable and should work fairly

Richard Harwood OBE QC, joint head of 39 Essex Chambers, says that if claimants need an immediate quashing order they should receive it:

That would be the decisive judgment to be made by the court and it would be one which the judge would have addressed anyway. Subsection (9) would not in practice affect how the power would be used.
It may be thought that it is unnecessary and adds a degree of complexity which could be dispensed with, but it is not a shift away from effective remedies for claimants.

Cart overturned

The Tribunals, Courts and Enforcement Act 2007 set up a two-tier system of independent judicial tribunals. Until 2007, strange though it may now seem, tribunals were largely run by the government departments whose decisions they had the power to overrule.

Section 11 of the 2007 act deals with appeals from the First-tier Tribunal to the Upper Tribunal.

Clause 2, if agreed, will add a new section 11A to the 2007 act. It effectively overturns a decision of the Supreme Court called Cart.

In that case, decided 10 years ago, the justices held that the High Court (and the Court of Session in Scotland) had jurisdiction to review decisions of the Upper Tribunal. Since then, the phrase “Cart judicial reviews” has been used to mean applications for judicial review of a decision of the Upper Tribunal refusing permission to appeal against a decision of the First-tier Tribunal.

The explanatory notes say that the number of challenges via this route is high, and the success rate is low. An independent review chaired by Lord Faulks QC

assessed this success rate as just 0.22%. Having investigated this further the government believes that the success rate is slightly higher and estimates it is around 3%. This remains lower than in most other types of judicial review.

As the government says in its impact assessment,

The majority of Cart cases relate to immigration and asylum. Therefore, those who lose out are more likely to have particular protected characteristics, for example in respect of race and/or religion or belief.

The impact assessment explains how the figure has been calculated and how the Faulks review got it wrong. “Around 3%” turns out to mean 3.4%.

What effect will the new legation have? It’s best explained with with two examples from the government’s explanatory notes. Here’s the first:

And this is the second, subtly different:

In summary, subsection (1) explains which decisions are covered by the new clause.

The clause continues:

(2) The decision is final, and not liable to be questioned or set aside in any other court.
(3) In particular—
(a) the Upper Tribunal is not to be regarded as having exceeded its powers by reason of any error made in reaching the decision;
(b) the supervisory jurisdiction does not extend to, and no application or petition for judicial review may be made or brought in relation to, the decision.

By subsection (7), the term “decision” includes a purported decision — one that there was no power to take.

Subsection (4) provides the exceptions referred to in these examples: an improperly constituted tribunal, one that was acting in bad faith and so on.

Subsection (5) makes provision for an exception in cases where the First-tier Tribunal’s jurisdiction over the underlying matter in question was, or could have been, created by an act of the Scottish Parliament or an act of the Northern Ireland Assembly.

Subsection (6) blocks any attempt by a disappointed appellant to by-pass the Upper Tribunal and go straight to the High Court.

As I reported before the bill was published on Wednesday, the government is hoping to use this clause as what Buckland called (at 42.38) a “template or prototype” for future attempts to oust the jurisdiction of the courts — while stressing that it would not be possible simply to cut and paste the wording into another bill.

But it may be harder than ministers think to use this legislation as some kind of precedent. Harwood says “there is a great deal of difference between ensuring that judicial proceedings are concluded and preventing judicial scrutiny of the lawfulness of administrative decisions”.

Dinah Rose QC, who knows a thing or two about ouster clauses, agrees:

Dinah Rose @DinahRoseQC

@AdamWagner1 Though Cart cases have the specific feature of the involvement of the Upper Tribunal. I don't think that an ouster that worked for them could be rolled out to insulate executive action from judicial scrutiny.

Helen Mountfield QC is equally sceptical:

The ouster of the courts’ jurisdiction is a serious matter, and even the most executive-minded judges will take the context into account in considering whether the court’s supervision is excluded altogether.

And Alex Horne takes a rather cynical view of the government’s motives. The public will see something being done, he suggests. Some lawyers will complain, which will play into the government’s hands:

Alexander Horne @AlexanderHorne1

@davidallengreen @law_and_policy This is actually quite clever politics which will get HMG a lot of what it wants, but will not lead to a major dispute with the senior judges who will note that HMG has stepped back from more drastic measures. /ends

Comment

Unlike others, I never claimed that the government would be using this bill to avoid public accountability:

Liberty @libertyhq

Fixed

Equally, I don’t regard these clauses as merely “constitutional plumbing” that will keep justice flowing in much the same channels as before.

Quite why the Ministry of Justice has gone back on some of the more outlandish proposals it trailed in the spring is not clear. No doubt the senior judges have had a quiet but firm word with him. I suspect that Lord Wolfson of Tredegar QC, who became a junior minister (unpaid) at the beginning of this year, has been an important influence.

Buckland could also point to the more conservative approach being taken by Lord Reed of Allermuir as president of the Supreme Court. In dismissing a challenge to the two-child limit in child tax credit claims, Reed complained two weeks ago that

challenges to legislation on the ground of discrimination have become increasingly common in the United Kingdom. They are usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign.

He concluded:

There is no basis, consistent with the separation of powers under our constitution, on which the courts could properly overturn parliament’s judgment that the measure was an appropriate means of achieving its aims.

Indeed, Buckland probably did point to that decision when he recalled this week that the Faulks panel had

concluded that “solutions to any potential problems of judicial overreach and uncertainty created by the current state of the law on the grounds of judicial review must come from the courts, and the courts should be encouraged to do what they can to address these problems.” I agree and I am encouraged by recent decisions of the Supreme Court.

When governments fail to deliver on the worst of their threats, one should not be lulled into a false sense of security. These provisions will certainly change the way courts handle judicial review claims — and not just in the field of asylum and immigration. Whether we shall all be better off as a result is something that nobody can yet be sure of — not even the secretary of state for justice himself.

Update 26 July: