Judicial Review and Courts Bill

Debate between Lord Etherton and Lord Marks of Henley-on-Thames

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, Amendments 1 to 3 in my name remove the power to make a quashing order prospective only or otherwise to limit its retrospective effect. These amendments replicate amendments tabled in Committee by the noble Lord, Lord Pannick, who unfortunately already had commitments abroad for today when I put down these amendments and so cannot be here.

This debate is not about the power to suspend a quashing order, which in some cases, we agree, may be a reasonable step. However, that is a far cry from a court on the one hand deciding that government action or regulation is unlawful, so that the court is going to make a quashing order, but then on the other hand being empowered to say that past unlawful action must stand, just as if it had been lawful. That is the effect of new subsection (4), which says that

“the impugned act is … upheld in any respect in which … subsection (1)(b) prevents it from being quashed”,

and of new subsection (5), which says that

“it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”

That is to validate unlawful action that the courts find expressly contravened the law—usually law made by Parliament.

I do not accept that the principle that unlawful action or regulation should be quashed ought to be abandoned simply because there may be hard cases for those who had relied on the law, as they wrongly believed it to be, and may be wrong-footed by the decision that the Government had acted unlawfully. In that category falls the songwriters’ case in 2015, mentioned in Committee by the noble Lord, Lord Anderson of Ipswich, where those who had innocently copied CDs in the belief that they were entitled to do so were found to have acted on the basis of an unlawful regulation.

Such hard cases may be addressed either by administrative action, where unlawful activity before the law was clarified would go unpunished, or by a suspended quashing order, as the noble and learned Lord, Lord Falconer, and I argued in Committee, giving Parliament the chance to correct any possible injustice, if necessary retrospectively. After all, it is for Parliament to change the law, as the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Falconer of Thoroton, pointed out—not for judges to decide to overlook a failure by government to comply with the law’s requirements.

That completely solves the dilemma described in Committee by the noble and learned Lord, Lord Hope of Craighead, in respect of the case of Ahmed, a terrorist asset-freezing case. The noble and learned Lord specifically suggested in that case that a suspended order would give Parliament the time to introduce fresh, lawful regulations.

Even more important to be weighed in the balance than the risk of hard cases are the fundamental principles that underly judicial review: that government must act within the law, that there must be remedies to correct unlawful action and that judicial review is public law in action. Orders made on judicial review are for everyone, not just the applicant before the court but all affected citizens, past, present and future. Many potential applicants cannot afford to apply for JR or simply do not know they can or how to go about it, yet this proposal would expose them to the consequences of unlawful executive action, even if a later challenge by a better-funded and more savvy litigant succeeded. If enacted, this new subsection would fire the starting gun on an unseemly race for justice.

It cannot be right for judges to be able to find that, for example, a tax was unlawful and in excess of power, yet to hold—after thousands of citizens may have paid that tax—that they will quash the unlawful regulation but that, because the sums involved were low, it would be disproportionate to repay all those who have paid, and so quash it only prospectively, leaving those who have already paid the tax cheated and out of pocket.

That is not the end of it. What about those who have not paid up? The unlawful regulation and the unwarranted demands remain effective for them, treated, in the words of new subsection (5),

“for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect.”

The Minister’s only answer to this conundrum in Committee was that it was

“almost incomprehensible that a court would use”

the power

“where people have paid taxes that were necessarily unlawfully raised”.—[Official Report, 21/2/22; col. 68.]

That is no answer, especially in the light of the presumption that the courts should generally exercise the power. The only respectable answer is not to give them the power.

In the environmental field, this power would probably put us in breach of our international obligations. We are bound by Article 9 of the Aarhus convention of 1998 to accord to all members of the public with a sufficient interest the right

“to challenge acts and omissions by … public authorities which contravene … national law relating to the environment.”

We are further bound by paragraph 4 of the same article to provide them all with “adequate and effective remedies” for infringement. Environmental law is central to public law and frequently the subject of judicial review. We would not be complying with the convention by denying members of the public who do not get in first the right to enforce the law. That is what prospective-only quashing orders would do. I doubt that such orders can be an adequate remedy.

Furthermore, in a case involving judicial review of unlawful executive action breaching a citizen’s rights under the European Convention on Human Rights, this new subsection seems to run the risk of being a denial of the citizen’s Article 13 right to an effective remedy. That article guarantees that:

“Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority”.


I suggest that an effective remedy is denied to a citizen whose right of action is stymied because some other litigant who was quicker off the mark in the race for a remedy has previously been granted a prospective-only quashing order.

This is not, as it has been described by the Government, a case of a harmless discretionary power in the judicial toolbox. It is a case of handing to judges the power to validate actions of the Executive that the court finds violated the laws passed by Parliament.

I will say very little about the presumption that is the subject of the amendment in the names of the noble Lords, Lord Anderson of Ipswich, Lord Pannick and Lord Ponsonby of Shulbrede, and the noble and learned Lord, Lord Etherton. I add only this to what I said in Committee: the presumption makes the denial of justice inherent in Clause 1(1) that much worse because, however many times the Minister may describe this as a “low-level” presumption and seek to persuade your Lordships that judges will always find ways not to implement it, the fact remains that it sets a default position to which conscientious judges are bound in law to adhere. In the absence of a finding of good reason not to do so, and provided that “adequate” redresses are offered

“in relation to the relevant defect”,

the court must both suspend a quashing order and remove, or limit, its retrospectivity. One is entitled to ask: “adequate redress” for whom? What does that expression mean, especially for the luckless loser in the race for justice which I mentioned? I do not believe that, to date, the Minister has given an adequate response. I beg to move.

[Lord Etherton (CB)]

In the absences of the noble Lord, Lord Anderson of Ipswich, who has unfortunately caught Covid, and the noble Lord, Lord Pannick, I shall speak to Amendment 4. This would remove subsections (9) and (10) of the proposed new Section 29A of the Senior Courts Act 1981. This amendment is supported by the Law Society, the Bar Council, the Bingham Centre for the Rule of Law and the Public Law Project.

Subsections (9) and (10) are not based on any recommendation from the Independent Review of Administrative Law chaired by the noble Lord, Lord Faulks. Subsection (9) is either constitutionally dangerous or unnecessary. It reads like a straightforward presumption in favour of making one of the two new quashing orders—a suspended or prospective-only quashing order. If that is a correct reading, it will be for the courts to say what its proper interpretation is. Subsection (9) is constitutionally dangerous and inappropriate as providing a precedent for interference by the Executive with the exercise of judicial discretion. Furthermore, it is contrary to the rule of law in so far as it limits the remedies which are available to set right the unlawfulness of conduct by the state.

In Committee, the Minister said that subsection (9) is not a presumption in the sense of

“trying to fetter judicial discretion or to steer … the courts to a particular decision.”

He said that it will be

“up to the court to decide what remedy is appropriate in the individual circumstances of the particular case”,—[Official Report, 21/2/22; col. 93.]

and that the court’s choice of remedy will, in this case as in others, be guided by what is in “the interests of justice”.

One must ask what the purpose of subsection (9) is. Is it necessary at all? The Minister explained that its purpose is to encourage the development of jurisprudence applicable to the new quashing remedies by requiring the court to consider those remedies positively. If subsection (9) is not, as it appears to be, a straightforward presumption, there is absolutely nothing in the wording of the subsection to support the Minister’s explanation as to its purpose. It is completely unnecessary, following the Minister’s interpretation, because the court is bound to take into account all the circumstances and remedies available in the case of unlawful conduct by the state, and taking into account all the “relevant” matters is specifically required by subsection (8).

Moreover, whatever the reason for the presence of subsection (9), it will encourage further litigation by way of appeal, as it introduces the hard-edged test in subsection (9)(b) that one of the new quashing orders

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

That is a hard-edged test and not a discretion. It plainly raises the possibility of widespread disagreement. In short, no good purpose is served by subsections (9) and (10)—only bad purposes—and they should be removed.

Judicial Review and Courts Bill

Debate between Lord Etherton and Lord Marks of Henley-on-Thames

Committee stage
Thursday 24th February 2022 Lords Chamber

[Lord Etherton (CB)]

As I foreshadowed at Second Reading, I have tabled this amendment to enable tribunals to make pro bono cost orders, as is currently the position in the civil courts and the Supreme Court. I am very grateful to the Minister and his officials for their positive engagement on this issue. I know that the Minister himself, as he was at Second Reading, remains genuinely sympathetic to the principle embodied in the amendment.

We have not received so far any amendment proposed by the Government to match what I have tabled, but this morning those representing the Access to Justice Foundation, which is the prescribed charity and will be the recipient of any pro bono award, received notification that the Attorney-General and the Solicitor-General support this change, with the Solicitor-General, who has general responsibility within the Government for pro bono, expressing strong support for it.

On that basis, I am cautiously optimistic that a government amendment will emerge in due course. The main issue of concern at the moment relates to the width of the tribunals that will be caught under the amendment. I know that work is going on regarding that. It would be useful for those who are interested in this issue to have the Minister’s current position recorded in Hansard. I beg to move.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we fully support the amendment moved by the noble and learned Lord. There is nothing that I wish to add. It is plainly sensible. There is no distinction between the civil courts and tribunals, and it is an obvious case for orders in respect of costs.