Judicial Review and Courts Bill

Lord Marks of Henley-on-Thames Excerpts

Consideration of Commons amendments
Wednesday 27th April 2022 Lords Chamber

Motion A1 (as an amendment to Motion A)

[Lord Marks of Henley-on-Thames]

Moved by

At end insert “and do propose Amendment 1B in lieu—

1B: Page 2, line 23, at the end insert—“provided that the court should seek to avoid exercising the power under subsection (1)(b) in such a way as to deprive a remedy from any persons who would have been entitled to seek a remedy by reason of the unlawfulness of the impugned act but who had not themselves been party to the application for the quashing order.””

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

My Lords, I am very grateful to the Minister for the careful and comprehensive way in which he opened this debate. Nevertheless, I regret the fact that the House of Commons rejected our Amendments 1 to 3 on prospective-only quashing orders. However, I greatly welcome the acceptance by the other place of the amendment moved by the noble Lord, Lord Anderson of Ipswich, removing the presumption that the court must generally exercise the new powers unless it sees good reason not to do so.

That presumption was by far the most offensive part of the Bill. It was rightly opposed across the House by lawyer and non-lawyer Peers alike. The noble Lord, Lord Anderson, is to be congratulated on the success of the amendment and I am grateful to the Government for accepting it. What we now have is an unfettered judicial discretion, circumscribed only by the requirement to consider the factors listed in Clause 1(8).

I have made it very clear that I oppose prospective-only quashing orders in principle. I do so first on the basis that their effect is to give retrospective validation to actions or decisions previously taken or regulations passed by government that the court finds unlawful and merit a quashing order. They breach the principle that it is for Parliament, not the courts, to change the law.

The second main reason for my opposition to such orders is that they do not protect those disadvantaged by unlawful government action taken before a quashing order takes effect. Where such an order is made, therefore, persons who are not before the court to present their cases are left with no remedy in respect of the unlawful action so they lose out against the well-funded, well-represented litigant who secured the prospective-only quashing order and the Government do not have to remedy the wrong for those affected before that order takes effect. That is a serious breach of the principle that proven wrongs should carry a remedy.

I pointed out on Report that this involves us or may involve us in breaching our international obligations, in particular in environmental cases, under Article 9 of the Aarhus convention, the obligation to provide an adequate and effective remedy to all affected by a breach by public authorities in environmental law, and in ECHR cases under Article 13 to ensure provision of an effective remedy for breach of the convention. I believe those principles outweigh any possible usefulness of the availability of a tool in the judicial toolbox to relieve government of the effects of unlawfulness.

It is said that unlawfulness may have worked to the benefit of some who relied on the law as they erroneously, as it turned out, believed it to be. For such unusual cases, any unfairness can be cured by administrative action or by suspended quashing orders with conditions to which we have not taken objection and/or by changing the law if Parliament sees fit to do so.

That said, the elected House has rejected our amendments, so my amendment in lieu is tabled to bring into sharp focus only the second factor that I have outlined—the lack of a remedy for all those adversely affected by previous government unlawful action if a prospective-only quashing order is made. My amendment in lieu would require the court to seek to avoid making such an order in cases where a person who would have been entitled to seek a remedy because of the unlawfulness in question would be deprived of a remedy by the fact that the quashing order was prospective-only. The amendment would address the point I have been making and would keep us in line with our international obligations.

I would like the Minister to accept it but if he cannot do so, as he indicated from the Dispatch Box in opening, then in line with the confidence that he expressed that it is intended that the courts should exercise the discretion, now thankfully presumption-free, with a view to avoiding the deprivation of a remedy that my amendment seeks to address, I would like to hear that assurance repeated and clarified.

I should add that I have been very grateful to the Minister and to this colleague in the other place, Minister Cartlidge, for engaging with me on this issue in two meetings and to the Bill team for the helpful pack it has put together relating to the principles applied by the Canadian courts addressing the question of prospective-only quashing orders. Those cases in Canada have, of course, persuasive authority in this jurisdiction and it is clear that the Canadian courts have exercised the discretion with great care. They have worked on the basis that before a prospective-only quashing order may be justified, first, the court’s decision on unlawfulness must represent a substantial change in the law and, secondly, the interests of all litigants and potential litigants must be carefully considered and balanced. I point out that without the removal of the presumption, those principles would not be applied in this jurisdiction. They are, however, principles that I endorse and which underlie my amendment in lieu. I await the Minister’s further response with interest.

--- Later in debate ---

[Viscount Hailsham (Con)]

My Lords, may I make one observation about Motion C1, which I am minded to support? It will bring a clear recommendation to Parliament within a year. This seems to be a very strong recommendation for it.

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

My Lords, I thank everybody who has spoken in this short debate. I also thank the noble and learned Lord, Lord Mackay, and the noble Viscount, Lord Hailsham, for the spirit of what they said on the legal aid point. I thank the noble and learned Lord for his helpful suggestion. I am also grateful to the Minister for the way in which he opened this debate and for his careful response. I add my warm thanks for the contribution of the noble Lord, Lord Wolfson, during his time as Minister, and for his engagement with all of us on the Bill and on many others, going back to last year and to what is now the Domestic Abuse Act.

I will not press Motion A1 to the vote. I maintain my opposition to prospective-only quashing orders. I have read and appreciated the contribution of the noble and learned Lord, Lord Brown, to the Times newspaper on this point. I understand his point of view. He puts it as eloquently and as highly as it can be put. Nevertheless, there are two arguments.

At this stage, we should recognise the importance of the Government’s withdrawal of the presumption which would effectively have fettered the discretion of the judges. I will seek leave to withdraw this Motion on the basis of the description of the discretion as given by the Minister. I do so with confidence that the Government will apply the principles applied in the Canadian courts and develop the jurisprudence in a way that secures protection for all parties or potential parties before the courts. I beg leave to withdraw Motion A1.

Motion A1 (as an amendment to Motion A) withdrawn.

Motion A agreed.

Motion B

Moved by