Reviewing judicial review

How far will Raab go?

The government’s Judicial Review and Courts bill will be debated for the first time in the House of Commons tomorrow, after MPs have paid tribute to their former colleagues James Brokenshire and Sir David Amess. Update 18 October: the debate was rescheduled.

Dominic Raab, the justice secretary, picked the bill up from his predecessor, Robert Buckland, who published his proposals just before MPs rose for the summer recess. In an interview for today’s Telegraph, Raab spoke both about judicial review and human rights. The two topics overlap in many ways, but since the government has decided to deal with them separately I shall confine this piece to judicial review.

Raab raised two concerns:

  1. Judicial review is being used to “harpoon” major infrastructure projects like the construction of new roads.

  2. The process is also currently being used to take legal action to overturn immigration tribunal rulings in “unmeritorious cases”.

These concerns are dealt with in clauses 1 and 2. The rest of the bill deals with other court-related topics.

During July and August, I published half a dozen pieces, analysing the government’s proposals for:

I summed it up as a Christmas tree bill, so called because the expected sparse spruce arrived with baubles hanging from every branch.

It’s still not clear whether Raab plans to hang a few more baubles on the bill as it proceeds through parliament. But I’m told that the government wants to get the legislation through parliament quickly, with the committee stage scheduled to begin on 2 November.

Clause 1: suspended and prospective-only remedies

The most controversial aspect of the bill is its introduction of suspended and prospective-only remedies in judicial review.

Clause 1 of the new bill, if agreed, will add a new section 29A to the Senior Courts Act 1981. This is how subsection (1) would then 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.

I wrote about that and the subsequent provisions in my earlier piece. But subsection (9) is crucial:

(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 presumption is a pretty clear steer to the courts to make a limited quashing order wherever possible. As a matter of law, the courts would still be able to quash an unlawful decision completely, as they can now. But will this provision fetter the judges’ discretion regardless?

I think it does. Buckland thought it did not. Raab clearly hopes it will.

The Public Law Project, an independent national legal charity, argues that the presumption in new subsection (9) should be removed from the bill. In a briefing to MPs, it argues that the power to suspend quashing orders should be limited to exceptional circumstances where it is in the interests of justice.

Failing that, “adequate redress” in subsection (9) should be amended to “effective remedy”. The legislation should make it clear that the redress or remedy should be adequate or effective not just for the claimant but for others affected by the allegedly unlawful act.

How a prospective-only remedy might work

Here are two examples. The first was suggested by the Public Law Project. The second comes from Raab.

1. The coroner’s policy

A Jewish burial society and a 79-year-old woman called Ita Cymerman challenged a London coroner’s “first-come, first served” inquest policy. In 2018, the High Court found the policy unlawful and quashed it. That was of immediate benefit to Cymerman and others; the coroner could no longer delay the funerals of Jews and Muslims whose religion requires burial within hours rather than weeks.

If this claim had been brought after the Judicial Review bill had come into force, the court might have decided that “adequate redress” could be achieved by the coroner consulting on a new policy and implementing it in six months’ time. The quashing order would be suspended until then. If Cymerman had died during the six-month period, she would have derived no benefit from winning her case. The unlawful policy would have been validated by the court during the consultation period.

2. Stonehenge

During the summer, campaigners successfully challenged a road project to build a road tunnel near Stonehenge.

Mr Justice Holgate found in July that Grant Shapps, the transport secretary, had failed to consider the relative merits of two alternative schemes for addressing the harm resulting from the road cutting he was proposing. The first was to cover approximately 800m of the cutting and the second was to extend the bored tunnel so that its two portals were located outside the western boundary of the world heritage site.

Holgate said:

In this case, the relative merits of the alternative tunnel options compared to the western cutting and portals were an obviously material consideration which the [secretary of state] was required to assess. It was irrational not to do so. This was not merely a relevant consideration which the [secretary of state] could choose whether or not to take into account.

The Department for Transport said the government was “carefully considering the judgment and deciding how to proceed”. But that should not be very difficult. Shapps simply has to consider the alternative schemes. If he adopts one, there’s a good chance it will turn out to be lawful.

What did his colleague the justice secretary say in yesterday’s interview?

If there’s an infrastructure project... there’s some legal challenge with it... what this would allow is the courts to point to the problem but give the government a chance to fix it without scrapping or disrupting the infrastructure project on which huge amounts of taxpayers’ money or commercial investment might be bound up in. That’s not what the public want. They don’t want to see these big projects or big initiatives totally undermined and capsized through litigation.

We know we’ve got a very litigious culture. I’m a recovering lawyer myself and we quite rightly have judicial checks on the executive. But it’s got to be done in a constructive and sensible way which allows the government to deliver the projects that it’s tasked and mandated by parliament to do [and ensures that] taxpayers’ money is not being squandered because projects are being harpooned.

How might Raab’s plan work? Maybe a campaign group could write to the government setting out its concerns and asking the secretary of state to consider alternative proposals. Perhaps that could be done before anyone went to court. Maybe we could give that a legalistic name, such as “pre-action protocol”.

Forgive the sarcasm. As lawyers will know, that’s what happens already. In a case such as this, it makes little difference if the secretary of state’s decision is quashed (as happened here) or merely suspended (as the government seems to be proposing). Either way, the secretary of state simply has to think again. If Shapps had got it right the first time, taxpayers’ money would not have been squandered.

Concerns about clause 1

There is no doubt that clause 1, if passed in its current form, would weaken the effectiveness of quashing orders. The Public Law Project offers five reasons why it should be resisted:

  1. It places victims of unlawful actions in an unfair position; remedies which are prospective-only may leave individuals without redress at all.

  2. It insulates government from scrutiny and make it more difficult for decision-makers to be held to account. Prospective-only remedies would be particularly likely to have a chilling effect on individual claimants bringing judicial review claims. Why would someone spend money, time and effort to challenge an unlawful decision made against them if that decision cannot be rectified in their specific case?

  3. It makes it more likely, rather than less, that judges will be forced into the political realm. The effect of a suspended or prospective-only quashing order may be to grant legal validity to an action which, on its face, contravenes legislation. It creates a judicial fix for an unlawful government act when such an action would ordinarily be the exclusive domain of parliament. Further, when deciding whether to issue a weakened remedy, judges must consider the likely future actions of public bodies, something which judges have previously described as a job they are “ill-equipped to undertake”.

  4. As senior judges have acknowledged, one of the benefits of the current system of quashing orders is its simplicity. While being presented as a measure that promotes certainty, these new remedies generate significant uncertainty in terms of how they are to operate and are likely to result in expensive post-judgment satellite litigation.

  5. Subsection (5) undermines a person’s right to bring a collateral challenge following an illegal public act. That subsection states that “Where… 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.” Imagine that one of the statutory instruments issued by the health secretary during the coronavirus crisis which created imprisonable criminal offences was declared illegal by a court. If a court granted one of the new remedies, this subsection would make it as though that imprisonment were always legal. A defendant could not argue in court that the statutory instrument was invalid — because this subsection requires a judge to pretend that it was valid.

Clause 2: Cart overturned

The Tribunals, Courts and Enforcement Act 2007 set up a two-tier system of independent judicial tribunals. Section 11 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.

Raab said:

We have something like 750 of these a year. The success rate is 3 per cent. This is people challenging their appeal decision and then the Upper Tribunal’s refusal to let them appeal again. I think it’s crazy. It’s crazy from the point of view of protecting the tribunal. It’s crazy for the immigration system to have that litigation attrition against them. And... I think fundamentally from a taxpayer’s point of view, it’s a waste of money, waste of resource, skewing outcomes. So... we’re going to cut out all of that.

It’s widely agreed that the Supreme Court went too far in Cart. But the Public Law Project has concerns about this clause too:

The government’s analysis adopts an unduly narrow definition of success which both artificially deflates the success rate and artificially increases the projected costs savings. That is because the Ministry of Justice assumes that a Cart judicial review is successful only if the refusal by the Upper Tribunal of permission to appeal is overturned and permission to appeal is granted and the appeal against the First-tier Tribunal’s decision is allowed. It has therefore excluded all those cases where the Cart judicial review played its vital role in correcting an error of law in the Upper Tribunal’s refusal of permission to appeal but the subsequent appeal was dismissed.

On that basis, says the Public Law Project, the success rate in Cart cases is more like 5.7% than the government’s figure of 3.4%.

It isn’t “crazy”, despite what Raab says, to put these decisions right. It’s not even particularly expensive. But three bites of the cherry is arguably a bite too far.

Is that all?

The following paragraph appears in today’s Telegraph story:

Outlining plans to use legislation to “correct” judgments, Mr Raab said: “We're identifying the problems and we’re making sure we fix them... We will get into the habit of legislating on a more periodic basis and thinking about the mechanism for that. Where there have been judgments that, albeit properly and duly delivered by the courts, we think are wrong, the right thing is for parliament to legislate to correct them.”

It appears from the context that Raab is talking about human rights rather than judicial review. If that’s so, then I don’t need to consider it in this piece. But, just in case it’s not, I should draw attention to an excellent video produced by Professor Mark Elliott today:

Elliott makes a very important point about this paragraph. If Raab is talking about parliament legislating to overturn the decisions of the courts in individual cases, there’s no constitutional problem so long as it’s not done retroactively — although the government’s willingness to abide by any court decisions it finds uncomfortable is a fundamental part of democratic accountability.

But ministers can already seek legislation to overturn adverse rulings. Why do they need a new “mechanism” to put right decisions that “we think are wrong”?

The we in “we think” must mean ministers, not parliament. If Raab is proposing that ministers should have broad powers to make secondary legislation “correcting” court judgments then, as Elliott says, this is profoundly problematic. Indeed, it turns constitutional principle on its head.

And if ministers are granted the powers to “correct” judgments without the need for legislation, those powers will certainly be used to overturn adverse rulings in judicial review cases. Watch carefully for government amendments when the bill enters its committee stage.

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