Judicial Review and Courts Bill

Lord Anderson of Ipswich Excerpts

Committee stage
Monday 21st February 2022 Lords Chamber

[Lord Pannick (CB)]

My Lords, the reaction of most of your Lordships to Part 1 of this Bill at Second Reading was summed up in the memorable words of the noble Baroness, Lady Jones of Moulsecoomb, whom I am very pleased to see in her place:

“It is not as bad as I expected”.—[Official Report, 7/2/22; col. 1371.]


Part 1 could certainly have been worse, but that of course is no answer to the amendments that we are now debating.

I declare my interest as a barrister practising in the field of judicial review. My Amendments 1, 4 and 5 in this group are concerned with decisions of the court to quash a public law decision, whether in the form of a statutory instrument, a decision of a Minister or a decision of a local authority or any other public authority.

As your Lordships and the Committee know, when a public body is found to have acted unlawfully, the decision is usually—not always—quashed; that is, overturned. This is an important protection of the rights of the citizen and an important deterrent to unlawful action by public bodies.

Clause 1 gives the court a power to decide that the quashing order should not take effect until a date specified in the order—some later date—and a power to remove or limit any retrospective effect of the quashing. I am not troubled by the court being given a power to decide that the quashing order should take effect at a later date. That power was recommended by the noble Lord, Lord Faulks—who is in his place—and his team in their well-informed and wise conclusions in March 2021 after their independent review of administrative law which the former Lord Chancellor, Sir Robert Buckland, had asked the noble Lord to conduct. The noble Lord, Lord Faulks, explained in particular that there may be cases where the court considers it appropriate to suspend a quashing order to enable Parliament to decide whether it wishes to amend the law. That seems entirely acceptable, because it recognises the supremacy of Parliament in our constitution, so there is no difficulty about that.

What the noble Lord, Lord Faulks, and his committee did not recommend and what my Amendment 1 seeks to remove from this Bill is the power in new Section 29A(1)(b), set out in Clause 1, for the court to remove or limit “any retrospective effect” of a quashing order. New Sections 29A(4) and 29A(5) make clear that this would mean that the decision or policy which the court has found to be unlawful is nevertheless to be “upheld” and

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

My Amendments 4 and 5 would remove those provisions.

What the Government are proposing would confer a remarkable power on our courts: a power for the court to say that what has been found to be unlawful shall be treated, and treated for all purposes, as having been lawful. Those adversely affected by the unlawful decision, including the claimant in the judicial review, would receive no remedy. If such a remarkable power is to be exercised, it should not be exercised by judges but by Parliament. Your Lordships will recall that one of the causes of the Civil War was Charles I’s use of a dispensing power. The monarch’s claim to such a power was abolished by the Bill of Rights 1689. I do not think it is wise to re-establish such a power in the hands of Her Majesty’s judiciary.

The decision on whether to validate what a court has found to be unlawful raises all sorts of policy considerations which are not for the judiciary to weigh up and determine. Indeed, to confer such an extraordinary power on our judges is, I suggest, inconsistent with this Government’s repeated expressions of concern that judges have or are exercising too much power. As my colleague at Blackstone Chambers, Tom Hickman QC, has pointed out, for the court to have this power to deny retrospective effect for its ruling and to do so permanently, not even only where the defect is technical, would be for the court to exercise a quasi-legislative power, including a power to override primary legislation —that is, the statutory provision which makes the impugned decision or policy unlawful.

Such a judicial power would undermine one of the key functions of judicial review, which is to encourage government to do its best to ensure that it behaves lawfully because it knows that illegality has consequences. It would deter judicial review applications: why bother to complain that the public body has acted unlawfully if the court may say that what was unlawful shall be treated as lawful? New Section 29A(1)(b) would have the effect—indeed, I suspect it has the intention—of seeking to protect government and other public authorities from the basic consequences of their own unlawful actions. I think that is a matter for Parliament and Parliament alone. I beg to move.

[Lord Anderson of Ipswich (CB)]

My Lords, I am slightly more relaxed than my noble friend Lord Pannick about the prospective-only quashing power in the new Section 29A(1)(b)—it is, in its essentials, already acknowledged in our law—but only so long as the courts are free to use it without constraint or presumption. In the Spectrum case of 2005, Lord Nicholls thought a prospective-only quashing order might be appropriate in some cases where a decision on an issue of law was unavoidable but a retrospective decision would have gravely unfair and disruptive consequences for past transactions. Each of his six colleagues agreed that it would be unwise to rule out the existence of such exceptional cases, even though Spectrum itself was not one of them.

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[Lord Pannick (CB)]

I am very grateful to the Minister and to all those who have spoken in this interesting debate. It is important to emphasise that this is not a technical legal issue. We are concerned here about the integrity of judicial review—a vital safeguard of the rights of all citizens.

I agree with the noble and learned Lord, Lord Falconer of Thoroton, that what is objectionable about Clause 1 is the power of judges to wave a judicial wand and to say that what they have found to be unlawful shall be treated—the word emphasised by the Minister—as if it were lawful.

If there are cases of concern—the noble and learned Lord, Lord Hope, said that there are or may be—a suspended order is quite sufficient to give Parliament time to act. Those in Parliament, not judges, are the appropriate people to validate that which the court has found to be unlawful. New Section 29A(1)(a) meets that need. Indeed, that was the issue in the Ahmed case, where the noble and learned Lords, Lord Hope and Lord Brown of Eaton-under-Heywood, had, as judges say, the misfortune to disagree with each other. It was what the noble Lord, Lord Faulks, recommended in his review.

My noble friend Lord Anderson mentioned the comments of Lord Nicholls for the Appellate Committee in the Spectrum case that prospective overruling might—I emphasise “might”—be appropriate, although not in that case. That was in June 2005. Such a power has never been exercised or come close to being exercised in any case since.

There is an important difference between the common law not ruling out the possibility of prospective overruling and Parliament including such a power in this Bill. I cannot understand why this provision is in the Bill. As I said, it was not recommended by the noble Lord, Lord Faulks. What has provoked the need for new Section 29A(1)(b)? The Minister said that the Government want to put new tools in the judicial toolbox—but why this tool? What case has provoked the need for this provision? When have judges ever lamented the absence of such a power?

My noble and learned friend Lord Brown of Eaton-under-Heywood emphasised the need for flexibility, but Clause 1 is not flexible in an important respect. If this power in new Section 29A(1)(b) is exercised, then under new Section 29A(5), as the Committee has heard, the impugned act

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

There is nothing flexible about that. With all due respect, the Minister’s reliance on “treated” is a matter of pure semantics; “for all purposes” means always and for all persons, whatever their circumstances, and even though they have not been represented before the court.

Therefore, I say to the Committee that there is no need for this power in new Section 29A(1)(b). It is inappropriate in principle. But for today, of course I beg leave to withdraw this amendment.

[Lord Anderson of Ipswich (CB)]

My noble friend just said that no case has come close to applying a prospective-only quashing order since a unanimous House of Lords said in the Spectrum case that they could imagine such cases. How does he explain the British Academy of Songwriters case, which he has heard both the Minister and I develop, and in which Mr Justice Green, as I read his judgment, gave precisely such an order? I should say that that is not the only case.

[Lord Pannick (CB)]

If he gave such an order, why is there a need for Parliament to step in and deal with the matter? In any event, such an order is more appropriately dealt with by a suspended quashing order so that Parliament, the appropriate authority, can deal with the matter if it sees fit to do so.

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Moved by

[Lord Anderson of Ipswich (CB)]

13: Clause 1, page 2, leave out lines 24 to 32
Member’s explanatory statement
This amendment would remove the presumption that where a suspended or retrospective-only quashing order would offer adequate redress, such a quashing order should be made in preference to an ordinary quashing order.

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[Lord Anderson of Ipswich (CB)]

My Lords, I rise to speak to my Amendment 13. Two of the greatest joys of practice at the Bar are finding oneself on the same side as the noble Lord, Lord Pannick, and feeling that the noble and learned Lord, Lord Etherton, might possibly be with you. On this amendment, I am experiencing both those joys, because both noble Lords, along with the noble Lord, Lord Ponsonby, have signed it.

Amendment 13 would remove the proposed new subsections (9) and (10), by which the Government seek to enlist our aid in watering down the remedies judges might grant in the unfettered exercise of their discretion. Such interference is unjustified as a matter of principle. Judges are skilled technicians who know that every case turns on its particular facts. The Clause 1 remedies are specialised tools, the uses of which are best judged not by remote control but by those dealing on the ground with the infinite variety of cases that human ingenuity throws at them.

Two factors should incline us to particular caution. The first factor is that the Government are themselves a party to most judicial review cases. Subsections (9) and (10) look very like an attempt to tilt the playing field against those who seek to hold public authorities to account for their unlawful actions. The judges can and should be trusted to serve the interests of justice without presumptions designed to serve the interest of their promoters.

The second factor is that the remedies in respect of which the presumption applies have always been treated by the courts themselves as suitable for exceptional cases only, not just in this jurisdiction but in other jurisdictions where they are used; in other words, the Government are attempting to reverse a presumption that the judges have themselves developed in the interests of justice.

Even apparently benign fetters on judicial discretion may have unanticipated consequences. So, despite the good intentions behind it, I am a little wary of the words that would be substituted by Amendment 14 in the name of the noble Baroness, Lady Chakrabarti. Had this been the law, it would no doubt have been argued that the rights-holders must have their pound of flesh from the innocent copiers of CDs, since to restrict the scope of the quashing order could have denied them an effective remedy. I am not sure that would have been a just result.

The Minister, as the consummate advocate he is, knows that his best chance of defending this presumption is to minimise its significance. Indeed, the first time he mentioned it this evening, he described it as a so-called presumption, although the adjective was later dropped, and his Second Reading speech scarcely acknowledged its existence. He preferred to emphasise that it is

“ultimately up to the judge to decide”

whether to take out the tools provided by Clause 1, that

“this does not limit the flexibility of the court”,

and that subsections (8) and (9) are simply

“there to ensure a consistent but rigorous approach to identify the appropriate remedy in each case.”—[Official Report, 7/2/22; col. 1380.]

Yet subsection (9) is not as benign as that. It creates a rebuttable presumption in favour of the Clause 1 remedies in any case where they would offer adequate redress—a phrase whose meaning, as we discussed at Second Reading, is highly uncertain and obscure.

Yes, a robust interpretation by the highest courts might confine it to very limited circumstances. However, such an interpretation would take time to achieve and, in the meantime, the steer inherent in this proposed new subsection will, I am afraid, be picked up and will retain its power to influence and even intimidate the less experienced judge.

Proposed new subsection (10) makes it worse by singling out for a special weight the factor identified in proposed new subsection (8)(e)—a factor that is itself uncertain and problematic, for reasons we have already heard. Particularly troublesome, going back to Amendment 11, is the weight that would have to be placed on action proposed to be taken by a public authority in respect of which no binding undertaking is, however, offered to the court.

However, my point is wider ranging. The particular weight given to one set of factors is in itself objectionable in principle, as a further limitation of the court’s discretion. I sum it up in this way: if proposed new subsections (9) and (10) constrain the free exercise of judicial discretion, they should be resisted on that ground alone; if they do not constrain it, they are pointless clutter and, for that reason, should be removed from the Bill. The underlying point is that there should be nothing in the Bill to discourage judges from holding the Government accountable, where the interests of justice require, for the past consequences of their unlawful acts. I hope that by the time we have finished with it, that is what we shall have.

[Lord Beith (LD)]

My Lords, if I were to give my apprentice joiner grandson a tool for his toolbox, I would not say, “In all circumstances, other than quite limited circumstances, this is the tool you must use and ignore the ones you already have”. The Government’s toolbox analogy does not seem to work. I am glad to have the opportunity to raise a question before the noble Lord, Lord Faulks, contributes to the debate—as I hope he will—because perhaps he can throw further light on the clarity of the recommendations of the Independent Review of Administrative Law on the issue we are debating. Paragraph 3.69 considered what would happen if the committee’s recommendation for a non-presumed format for these circumstances were followed and stated that, if Section 31 were amended in this way,

“it would be left up to the courts to develop principles to guide them in determining in what circumstances a suspended quashing order would be awarded, as opposed to awarding either a quashing order with immediate effect or a declaration of nullity.”

It was a very clear recommendation, and the Government should have taken that advice, as they took much other advice from the excellent document produced by the Independent Review of Administrative Law.

I will enter one other point into the debate. It was referred to by the former Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton: the issue of adequate redress. The way the phrase appears in proposed new subsection (9)(b)—

“offer adequate redress in relation to the relevant defect”—

worries me. It may not have been drafted with this intention, but there is a very great danger if “adequate redress” is seen as a matter which concerns only the person pursuing the action. It is perhaps too rash to say “most”, but many judicial review cases, by their very nature, have a far wider effect than simply on the individuals involved in the case. That is, indeed, recognised in the Government’s own formulation of proposed new subsection (8). It refers both to those

“who would benefit from the quashing of the impugned act”

and those who had expectations and

“relied on the impugned act”.

There will be large numbers of people in many judicial review cases who will be affected by the outcome, either because an action they have already taken will be deemed to have been unlawful at the time it was taken or, indeed, because the law on which they have relied to enforce a regulation has now been found not to have been good or effective law at the time. The breadth and implications of judicial review cases—which is why the subject arouses such widespread interest—is potentially threatened if the concentration becomes on “We’ve fixed it for the unfortunate person who appears before us in this case” without having proper regard to the very large number of people who will be affected. Now, courts do have regard to it and that is a feature of many of the cases referred to in the debate. I am suspicious that the Government wording appears to discourage them from doing so.

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[Lord Wolfson of Tredegar (Con)]

I would not say that it is “just” about remedies; as this debate shows, remedies are very important. But I do not think that Mr Justice Green, in the music copyright case, felt that he was legislating in any way. As we heard in the first debate, this issue goes back to Lord Reid and indeed further.

There are two separate issues here. First, should we have prospective-only quashing orders as a matter of principle? We dealt with that in the first group, and I set out the reasons why. Secondly, in this group, should there be any sort of presumption? That is the point that I am seeking to address. But I hope that what I have said on third parties assuages the noble Baroness on both the presumption and prospective quashing orders generally.

The noble and learned Lord, Lord Thomas of Cwmgiedd, asked me whether this will become a standard approach for future legislation. There, I really would be going well beyond my remit. However, going back to what I said earlier, there is nothing conceptually unusual here in either a presumption or a list of factors. There is certainly nothing sinister—a word that was used by someone in that context.

I hope that what I have said goes at least some way to clarifying the concerns that have been raised on the presumption. Of course, I have listened very carefully to what has been said, and I shall reflect on it further. For the moment, I invite the proposers of the amendments not to press them.

[Lord Anderson of Ipswich (CB)]

I thank all noble Lords who have contributed to this notable debate—notable not just for its quality but for the rare and even forceful unanimity that it evoked among nearly all lawyers who spoke. I exempt, of course, the Minister, who was paid, or possibly not paid, for taking the opposing view.

I thought that the noble and learned Lord, Lord Etherton, put it most pithily when he said that the presumption was unnecessary, wrong in principle and potentially dangerous in practice. He was swiftly outdone by the noble and learned Lord, Lord Judge, who, if I may say so, correctly described it as a presumption on favour of the wrongdoer—the person against whom a quashing order is to be made. Even the noble Lord, Lord Faulks, who attempted a characteristically fair-minded defence of the presumption, confessed that he was not persuaded that it was necessary.

Of its necessity, I was not persuaded by the Minister in his speech. He still seemed unsure whether it is a presumption at all—but if it is not a presumption, what on earth is it, save for a sort of fertiliser for, as he put it, encouraging the growth of jurisprudence, which I think we are all agreed it would be? I hope that the Minister is right that “adequate redress” is broader than “effective remedy”, but, sadly, neither his words, or still less mine, are any substitute for the authoritative judicial ruling that would no doubt take great time and effort to achieve. These subsections are not something that we should have in this Bill, and they would be a damaging precedent for other Bills.

Finally, we are in the extraordinarily privileged position in this Committee to hear from very senior judges whose lives have been devoted to the interpretation of such laws what the practical defects of proposed laws would be. I hope that we will not only hear them but act accordingly when, as we surely will, we come back to this on Report. In the meantime, I beg leave to withdraw the amendment.

Amendment 13 withdrawn.