David Lock QC, David Elvin QC and Richard Drabble QC look at the some of the potential consequences of the Judicial Review and Courts Bill.
The Government’s reform agenda, influenced in part by the Judicial Power Project, was driven largely by the perception that the courts have increasingly overstepped into the legislative and executive arenas. Thus, after commissioning a wide-ranging review of administrative law chaired by Lord Faulks QC, followed by the Government’s Response and consultation earlier this year (which has led to a significant softening of the proposals), the Judicial Review and Courts Bill 2021 has been introduced.
In contrast to the original Government intention to curtail or restrict the power of the judiciary in judicial review, based on a view of judicial interventionism in political issues, which was not supported by the Faulks Independent Review of Administrative Law, these proposals present a much less radical change to the law. Indeed, the proposals only address the ability of the court to modify quashing orders in terms of limiting, suspending or postponing its effect (clause 1) and abolishing the rule in R (Cart) v The Upper Tribunal  1 AC 663 (clause 2) – both of which were supported by IRAL. Moreover, the proposal to address concerns about the effect of nullity on the Court’s discretion have been addressed much more simply and pragmatically (as suggested by IRAL) than the Government Response appeared to suggest might be the case.
Powers in relation to quashing orders
The Bill proposes to add a new s29A(1) to the Senior Court Act 1981, allowing the courts to suspend, postpone and limit and/or remove the retrospective effect of quashing orders. S29A(2) provides that that may be subject to conditions so the court may craft a quashing order to suit the particular circumstances, though the powers appear more suited for defects in statutory/regulatory schemes rather than individual decisions under challenge. S29A(9) creates a limited presumption that the court should make provisions and apply subsection (1) if s29A(1)(a) or (b) orders offer “adequate redress” in relation to a relevant defect, and if that is the case then the court must exercise its powers, unless it sees a “good reason” not to do so.
This confers a wide discretion on the Court nonetheless. In considering the application of the presumption, s29A(10) provides that the court should take into account under s29A(8)(e) “any action proposed to be taken or an undertaking given” (to remedy the defect). This would allow the Court to consider for example any proposals to amend the legislation, timescales, compensation etc. Section 29A(8) then sets out the considerations which the court must have regard to when deciding whether to exercise the powers in subsection (1). These considerations are mandatory but not exclusive:
- the nature and circumstances of the defect;
- any detriment to good administration that would result from exercising or failing to exercise the power;
- the interests or expectations of persons who would benefit from the quashing of the impugned act;
- the interests or expectations of persons who have relied on the impugned act;
- 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; and
- any other matter that appears to the court to be relevant
With regard to concerns regarding nullity, and the effect of Ahmed  1 AC 534, the Bill adopts a pragmatic approach rather than seeking to disturb well-established jurisprudence on the juridical basis for judicial review with the possibility of unintended consequences (another part of the Government consultation which attracted significant criticism), and simply provides in s29A(5) that when the court determines to exercise the s29A(1) powers and upholds the impugned act under s29A(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”. Since this effect only occurs following the exercise of those powers, it does not appear to constrain the consideration of whether to exercise those powers or the consideration of the issues arising under s29A(8)-(10).
The exercise of the s. 29A powers
The proposed s. 29A appear most apt for statutory/regulatory schemes found to be defective and for allowing revised legislation to be introduced prior to quashing of the original (or leaving it partly in place). There may be some individual cases where the power will be relevant but these seem less likely to arise outside the scope of the existing powers not to quash or to refuse relief.
In the context of deciding whether the application of the presumption will lead to “adequate redress”, or whether there is “good reason” not to apply it, having regard to any proposed actions under 29A(8)(e), a whole range of issues may arise which may require additional consideration and evidence either at the main JR hearing or following the Court’s decision in principle that there are legal defects. The concerns expressed by Lord Nicholls and Lord Hope in re Spectrum Plus  2 AC 680 at §§12-17, 26-38, 71-74, about the potential unfair and discriminatory effects of prospective remedies should be noted since they may well arise with respect to the exercise of the new powers.
Issues may also arise with regard the timescale for amendments which may turn on how quickly regulations could be amended and cases where there may be political disagreement as to outcome – which may influence how s29(8)(e) should be approached. Questions include whether the presumption involves consideration on the facts of only the claimant, or whether a class of persons is affected, whether arbitrary or discriminatory effects are likely, as well as the impact on good administration, or other wider issues e.g. effect on the environment. These are reflected in the width of s29(8) and the discretion of the Court.
In practical terms, the exercise of the power may require evidence and submissions as to what will be done to correct the defect and to deal with issues such as timescales for corrective action, what is to happen if the timescale is not observed, compensation, effect on other parties. This may well be a matter for a practice direction or future judicial guidance. Some simple examples are provided in the Fact Sheet (Judicial Review) published by the MOJ with the Bill. This doubtless creates scope for satellite litigation as, for example in R (D4) v Home Secretary  EWHC 2179 (Admin), where a dispute arose concerning suspending the effect of an order pending appeal. For the court to decide whether it can exercise its s29A powers or whether it is bound apply the presumption in s29A(9), may be a complex issue involving consideration of wider issues for which further evidence and proposals may be necessary. However, what is clear is that it extends well beyond the current powers situation where the court may refuse relief under s31(2A)-(2C) following Plan B Earth  PTSR 1246 at §§267-276.
Abolition of the rule in Cart
Rather than introducing broader proposals for ouster clauses (which were heavily criticised during the consultation), clause 2 introduces a new s11A into the Tribunals, Courts and Enforcement Act 2007 which abolishes the decision in Cart and makes any decision to refuse permission to appeal by the Upper Tribunal “final and not liable to be questioned or set aside in any other court” (s11A(2)), which includes any claims that the UT has exceeded its powers or claims for judicial review (s11A(3)) with narrow exceptions in s11A(4). It does not appear to affect the ability in certain cases to bring direct judicial review concerning questions of law rather than through an appeal to the UT.
This article is a summary of the webinar delivered by David Lock QC, David Elvin QC and Richard Drabble QC of Landmark Chambers which can be accessed here.
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