Judicial Review and Courts Bill

Lord Anderson of Ipswich Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, there is quite a bit to welcome, and quite a bit to debate, in the Bill. I am going to speak at this stage only on Clause 1. A court in which I used to appear regularly—the European Court of Justice—has, for many years, had the habit of occasionally granting each of the remedies envisaged by Clause 1: what have been called the suspended quashing order and the prospective-only quashing order. I understand that the same is true of courts in some other countries, both in Europe and further afield. Perhaps because I have become used to these remedies in practice, I believe that each has its place, if not at the top of the judicial toolbox, then certainly somewhere within it.

I will give a couple of illustrations to add to those provided earlier by the Minister, starting with the suspended quashing order. In the well-known case of Kadi v Council, the sanctions imposed without due process on Mr Kadi—suspected at the time, although no longer, of having funded al-Qaeda—were quashed in 2008 with effect from three months in the future. This gave the Council a strictly time-limited chance to correct its error if it had the wherewithal to do so. As Mr Kadi’s advocate, I wondered whether the court would have had the courage to issue a quashing order at all, given the possible security consequences, if the option of a suspension had not existed. The chosen remedy seemed an effective compromise.

Prospective-only rulings have their origins in the Defrenne case of 1976, in which the court declared the treaty principle of equal pay for equal work to have direct effect. Having taken into account many of the factors now set out in new subsection (8), the court declared its ruling to be prospective only, except for those who had already brought legal proceedings or made an equivalent claim. In the relatively few cases that have followed of prospective-only quashing orders, a similar exception has been applied. Perhaps that exception will find favour with our courts too: it would seem to qualify as a condition within new Section 29A(2) of the Senior Courts Act 1981 and as a factor to which the court must have regard under new subsection (8)(c).

Not so welcome, at least to me, is the presumption in new subsection (9), particularly as glossed by new subsection (10), with its vague reference to action “proposed to be taken”. The institutions of the EU do not seek to dictate to its independent court the circumstances in which these remedies should be used, and I am not so far persuaded that this attempt at long-range micromanagement is appropriate here either.

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.

Current Supreme Court guidance does not encourage the judges, when construing Acts of Parliament, to have regard to our debates. None the less, I should be glad to know if the Minister agrees with what I said about the scope of the presumption. If I am right, new subsections (9) and (10) are a good deal less toxic than Section 38(8) to (10) of the Environment Act 2021, which despite the best efforts of your Lordships inhibits the High Court on environmental review from granting any useful remedy at all. However, we should have better reasons for waving through new subsections (9) and (10) than their only limited toxicity.

The Minister, James Cartlidge, said in Committee in another place that

“removing the presumption from the Bill would not necessarily prevent the new modifications to quashing orders from operating effectively”.—[Official Report, Commons, Judicial Review and Courts Bill Committee, 4/11/21; col. 127.]

Who knows? Perhaps, after proper debate, we will need to put that proposition to the test.