Reviewing judicial review

Lords get to grips with government plans

The House of Lords gave a second reading to the government’s Judicial Review and Courts Bill yesterday. That is standard practice: attempts to vote down particular provisions may come later. The debate lasted for a little under three hours and is worth reading in full. I wrote in detail about the bill last summer.

Lord Wolfson of Tredegar QC last week

Lord Wolfson of Tredegar QC, the justice minister, set out the most significant changes:

Clause 1 provides courts with greater flexibility, allowing them to deal more practically with the ramifications of quashing while delivering justice to claimants. That is achieved by allowing courts to suspend the effect of a quashing order or to limit or remove its retrospective effect. Suspending a quashing order means that courts can, when appropriate, allow a decision-maker to make a new decision before the unlawful act is quashed, or put in place transitional arrangements.

Making a quashing order prospective-only enables the court to consider the interests of those who have relied on a decision which is being struck down and prevent a regulatory vacuum arising when secondary legislation is quashed. Individuals or families may in good faith have taken actions that they thought were lawful, and, without the ability to make a quashing order prospective-only, would have acted on the basis of a regulation which would be ruled never to have legally existed.

He then made an important concession which may well be referred to in future litigation — although the judges do not normally take judicial notice of what’s said by ministers in the Lords:

I want to make it absolutely clear that the decision whether to use these remedies in any particular case will ultimately be for the court. The government acknowledge that the new remedies may not always be appropriate and that in those circumstances, the court will be under no obligation to use them, either because they would not offer adequate redress or for some other good reason.

Wolfson continued:

Clause 2 implements another recommendation of the independent review: it ousts the supervisory jurisdiction of the High Court and Court of Session over the Upper Tribunal under certain circumstances. This overturns a Supreme Court judgment in 2011 that established what is now commonly known as a Cart judicial review, or an Eba judicial review in Scotland…

The ousting of supervisory court jurisdiction contained in clause 2 is clear in its intent and narrow in scope. It still allows for some oversight by the supervisory court in the very unlikely event the Upper Tribunal acts in bad faith or commits a fundamental breach of the principles of natural justice.

From the Opposition front bench, Lord Ponsonby of Shulbrede said that Labour did not agree with the government’s judicial review proposals:

We would support removing them entirely. We believe that the Ministry of Justice is trying to fix something that is not broken. The government should be spending their time tackling the record court backlog, protecting victims of serious crime and strengthening community-based sentences…

Clause 1 creates new powers for courts to remove or limit the retrospective effect of a quashing order. It will also create a presumption that a judge issuing a quashing order should make it suspended or prospective only. As a result, courts would have less power to provide redress or to compensate those affected by past uses of the unlawful decision. On the face of it, that might seem quite a small change to judicial review, but we believe that the effects could be profound and chilling.

Lord Anderson of Ipswich tried to extend the exception to clause 1:

The saving grace of the presumption, if it has one, is its limited scope. No presumption applies when, to suspend a quashing order, or to make it prospective only, would, in the opinion of the court, not offer “adequate redress”. That phrase will, no doubt, be much debated.

I take it to include the concept of an effective remedy, not only for the claimant in the case but for other existing or potential claimants. Yet redress is a broader concept than that of remedy: Mr Justice Sedley, as he then was, said in the Kirkstall Valley case that

Public law is concerned not only with the vindication of positive rights, but with the redress of public wrongs wherever the court’s attention is called to them by a person or body with sufficient interest.

Where the redress of public wrongs requires a decision to be quashed, in other words, the courts should not be hamstrung by any presumption in favour of the specialist remedies provided for by clause 1.

Lord Faulks QC, who reviewed judicial review for the government, said that “clause 1 and clause 2 broadly reflect what we recommend, and so I support the bill”. Lord Howard of Lympne QC, the former home secretary, thought it did not go far enough.

Lord Brown of Eaton-under-Heywood, the former law lord, supported the bill, adding, in the sort of language you don’t hear every day, that “clause 1 would give the quietus to what has been called the “metaphysic of nullity” — the constraining theory that any legal error makes a decision or instrument not merely voidable but void ab initio”.

Lord Etherton, the former master of the rolls, spoke about quashing orders:

It is advantageous for the court to have the remedies open to it increased. The problems here arise under the mandatory provisions of clause 1(9).

There are two problems, in my view: first, that there is no need, and it is unhelpful, to circumscribe the discretion of the court; and, secondly, that it will be unclear in many cases how the court should apply the phrase

would as a matter of substance offer adequate redress in relation to the relevant defect.

I predict that there will be a plethora of satellite litigation and appeals in relation to the court’s approach to those words in many cases.

Then we heard from Lord Pannick QC, who pointed out that he had practised in the field of judicial review for 40 years:

Your lordships will recall that the government announced in last year’s Queen’s Speech that they would be bringing forward legislation to “restore the balance of power between the executive, legislature and the courts”.

I am therefore surprised that clause 1 seeks now to confer on the judiciary a very wide new power to absolve unlawful acts. This includes, as expressly stated in proposed new section 29A(4) and (5), a power for the court to say that an act unlawful when it was carried out shall be treated as if it were lawful at that time. This is a remarkable power to confer on the judiciary.

I am not sure about the metaphysics of nullity to which the noble and learned Lord, Lord Brown of Eaton-under-Heywood, referred. I am more concerned about the nuts and bolts of this. If exercised, this power would mean that people who have suffered loss and damage by reason of unlawful government action would be denied compensation or damages for that wrong.

It would mean, as the organisation Justice has pointed out in its very helpful briefing paper, that people who have had to pay tax under an unlawful regulation would be unable to require a refund. It would mean that people who had been prosecuted under an invalid statutory instrument, perhaps for a driving offence or a breach of the coronavirus regulations, would be unable to have their criminal record altered.

It cannot be right that a court should have a power to decide that something that is unlawful shall be treated as lawful despite such implications. That is why the Faulks committee, to which the minister rightly paid tribute, recommended only what would be new section 29A(1)(a)—that is, a power for the court to suspend a quashing order for the purpose of allowing time for parliament to intervene if it thinks fit; no constitutional vandalism there.

By contrast, to give the judge a discretion to say that what was unlawful shall be treated as lawful is to encourage judges to enter into very treacherous waters. It requires the judge to assess the merits of competing policy factors that it is entirely inappropriate for the judiciary to assess.

In his opening speech, the minister rightly emphasised that judicial review is not concerned with judges deciding the merits of a decision or a policy. This new power will encourage and require judges to do precisely that. All of this is even more objectionable when one takes into account the fact that there is to be a presumption of “no retrospective effect” for the quashing, as some noble lords have mentioned.

The Labour backbencher Baroness Chakrabarti made the first overtly political speech in the debate. She was supported by Baroness Jones of Moulsecoomb, from the Green Party. The former lord chief justice Lord Judge, after recalling that he used to “hack around the Bedford Quarter Sessions” with the newly elected but returning Labour hereditary Lord Hacking, rightly drew attention to the bill’s Henry VIII clauses. After suffering a lifetime of jokes about your name, it must be a relief to turn the tables.

Wolfson replied to the debate with great skill. All too often, a junior minister is unable to answer many of the points made in a second-reading debate. Wolfson handled the detail as well as the political knockabout:

The noble lord, Lord Ponsonby, referred to a number of pressure groups which had put out various press releases dealing with the judicial review measures. I have received those as well — I have even read them — and nothing in the bill justifies the charge levelled against the government of putting whole swathes of government policy or decision-making beyond the scope of review.

The fact is that, for some groups, any legislation in the field of judicial review is treated as necessarily improper and wrong in principle. Too many groups, I am afraid, wrote their press releases first and then read the bill. That also goes, I have to say, for the Twitter feed of one member of your lordships’ house, who unfortunately cannot be with us this evening.¹

This is not, to use the words of the noble Lord, Lord Beith, a full-frontal attack on judicial review. It is not even guerrilla tactics. What it is is a proportionate and sensible response…

Prospective-only quashing was raised by a number of noble lords. The relevant point seems to be that there are plainly circumstances where a prospective-only quashing order is, and will be, in the best interests of justice and good administration. That is particularly relevant for individuals, businesses and families who may in good faith have taken actions based on regulations which are to be quashed.

The noble baroness, Lady Whitaker, referred to some very serious circumstances in some hypothetical examples. Those circumstances might well provide a good reason not to use a prospective quashing order, but the point is that the courts are not obligated to do so.

What we want to do in the bill is to provide the courts — I will use the metaphor again — with new tools in the toolbox but it is ultimately up to the judge to decide whether to take them out. To support this, clause 1(8) lists factors which courts should consider when determining whether the new remedies are appropriate.

The interests of justice is the overriding objective which governs everything the court does and that is, frankly, taken as read in anything the court does in any circumstances. But I say to the noble lord, Lord Thomas of Gresford, that this does not limit the flexibility of the court. Clauses 1(8) and (9) are there to ensure a consistent but rigorous approach to identify the appropriate remedy in each case.

Comment

It looks to me as if the government will get this legislation through the House of Lords and on to the statute book without too much difficulty. Harder to predict, though, is how the courts will handle it.

1. This peer, perhaps:

Charlie Falconer @LordCFalconer

PM just appointed his judicial review limiting committee, chaired by lawyer who wrote after prorogation case courts’ JR powers should be curbed. PM expects response within 5 months from committee. Once it’s rubber stamped curbing courts’ powers another check and balance lost.