Judicial Review and Courts Bill (First sitting)
Debate between Janet Daby and John HayesTuesday 2nd November 2021
(3 years ago)
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Sir John Hayes
Q
Professor Feldman: Thank you. I shall read it with interest.
Janet Daby (Lewisham East) (Lab)
Q
Dr Morgan: I think I just want to repeat what I said earlier, which is that it certainly could. To adopt Professor Feldman’s example, if the court suspends the effect of its order in an immigration case, you might have been deported by the time the order comes into force. Certainly it could cause serious problems for applicants in particular cases, but there are countervailing advantages, particularly where we are dealing with the general legislative scheme, which the court would otherwise immediately quash with retrospective effect. That could cause enormous difficulties in a very important area.
The Ahmed case was about quashing these freezing orders, made by requirement of the United Nations Security Council on suspected international terrorists. The court said that the whole legislative scheme had to be immediately quashed, as many Members will remember. It required emergency legislation to deal with it. In cases like that it could be beneficial, but it could cause a problem for a particular applicant. My earlier answer suggested how we might try and address it; Professor Feldman was right to say that damages and compensation are not always the answer, but they might be sometimes.
Judicial Review and Courts Bill (First sitting)
Debate between Janet Daby and John Hayes
Sir John Hayes
Q I simply recommend that you read the Attorney General’s speech on this, delivered in Cambridge about a week ago, which sets out exactly why this matters and defines judicial activism pretty well. I make no more comment, but refer you to that.
Professor Feldman: Thank you. I shall read it with interest.
Janet Daby (Lewisham East) (Lab)
Q Returning to quashing orders, the Bill proposes the introduction of suspended quashing orders. They would allow the courts to give public bodies a certain amount of time to correct an unlawful act, instead of immediately striking it down. Could this have any negative implications for claimants in judicial review proceedings?
Dr Morgan: I think I just want to repeat what I said earlier, which is that it certainly could. To adopt Professor Feldman’s example, if the court suspends the effect of its order in an immigration case, you might have been deported by the time the order comes into force. Certainly it could cause serious problems for applicants in particular cases, but there are countervailing advantages, particularly where we are dealing with the general legislative scheme, which the court would otherwise immediately quash with retrospective effect. That could cause enormous difficulties in a very important area.
The Ahmed case was about quashing these freezing orders, made by requirement of the United Nations Security Council on suspected international terrorists. The court said that the whole legislative scheme had to be immediately quashed, as many Members will remember. It required emergency legislation to deal with it. In cases like that it could be beneficial, but it could cause a problem for a particular applicant. My earlier answer suggested how we might try and address it; Professor Feldman was right to say that damages and compensation are not always the answer, but they might be sometimes.