Judicial Review and Courts Bill

Lord Sandhurst Excerpts

2nd reading
Monday 7th February 2022 Lords Chamber

[Lord Sandhurst (Con)]

My Lords, it was a pleasure to hear the speech of the noble Lord, Lord Hacking, and his tour d’horizon of the giants and giantesses of old. I shall speak only in respect of the proposals relating to judicial review. My focus will be on the suspended quashing orders.

The elegant report from the independent review chaired by my noble friend Lord Faulks had these concluding observations. I point to two in particular. First, it said:

“It is inevitable that the relationship between the judiciary, the executive and Parliament will from time to time give rise to tensions … On one view, a degree of conflict shows that the checks and balances in our constitution are working well.”


Well, they are working well at the moment. Secondly, it said that

“the government and Parliament can be confident that the courts will respect institutional boundaries in exercising their inherent powers to review the legality of government action. Politicians should, in turn, afford the judiciary the respect which it is undoubtedly due when it exercises these powers.”

The Bill gives judges sensible new powers to address errors in legislation and administration.

The panel concluded that suspended quashing orders would bring benefits. It explained why. It identified concerns that, in certain cases, the courts have overstepped constitutional boundaries in ruling against legislation. The report said that such concerns

“would have been substantially allayed had the remedy in those cases consisted of a suspended quashing order.”

That is because such an order could have indicated that the impugned exercise of public power would be automatically quashed at a fixed point in the near future unless Parliament legislated in the meantime to ratify the exercise of that power. It is giving Parliament a choice.

As the panel explained, such a suspended order would have made it clear that the court acknowledged the supremacy of Parliament in resolving conflicts between the Executive and the courts as to how public power should be employed. Such orders will go further than issuing a mere declaration that a Secretary of State has acted unlawfully. That approach has been used where to quash regulations would cause undue and unmerited disruption, but some people feel that it is a bit of cop-out. A suspended quashing order will have more teeth than a declaration. It could indicate that regulations will be quashed within a certain time from the date of the judgment unless the Secretary of State has in the meantime properly performed his or her statutory duties and considered, in the light of that exercise, whether the regulations need to be revised.

I suggest that the criteria under new Section 29A(8) give the court ample scope to avoid injustice. The courts will be free to decide whether or not to treat an unlawful exercise of public power as having been null and void from the outset. In reality, its discretion will not, I suggest, be unduly fettered. The ability to make such orders will be especially useful: first, in high-profile constitutional cases where it would be desirable for the courts explicitly to acknowledge the supremacy of Parliament; and, secondly, in cases where it is possible for a public body, given time, to cure a defect that has rendered its initial exercise of public power unlawful. Finally, I note with a little gratification that the Bar Council, which I once chaired, has said that it has no significant concerns about these provisions in the Bill as drafted.

I commend this provision. I also support the provision to overturn the decision in the case of Cart. As the panel—and other noble Lords—explained, the continued expenditure of judicial resources on considering applications for a Cart judicial review cannot be defended. The practice of making and considering such applications again and again must be discontinued. The ouster clause is carefully crafted and does not set a dangerous precedent for the future.

Judicial Review and Courts Bill

Lord Sandhurst Excerpts

Report stage
Thursday 31st March 2022 Lords Chamber

[Lord Judge (CB)]

My Lords, I am in the happy position of having somebody agree with me on every point—but not everybody agrees. The Minister is a remarkable advocate. If he came to my home and we had a family cat, after he had spoken for about two minutes the cat would be convinced that if it wanted a fish, it should dive deep down into the sea, find one at the bottom and bring it out.

The Bill provides a new, additional remedy, and it is a very wise step. Can we please consider situations in which judicial review is involved? A massive judicial review proceeds against—it does not matter who—the Government, a ministry, a local authority, and at the end of the hearing the judge finds there is no unlawfulness about this, that and the other, but yes, there was a moment when the decision-making process was flawed because a small procedural step was not taken. It should be open to the court, having listened to arguments on both sides, to say that that procedural irregularity, although demonstrated, has not affected anybody and therefore the order will not be quashed so all the matters that were in argument can proceed. I see no difficulty about that.

My real problem is that I am very troubled about the way in which the new remedy is circumscribed with the presumption. It gives the opportunity for inaction to the wrongdoer. The Minister said that there is not a very heavy presumption, not much to make a fuss about, besides which there is the development of new jurisprudence—I love the idea of the Government wanting judges to develop new jurisprudence in the field of judicial review and I am very grateful to the Minister for that offer—but the only thing expressly required of a judge considering judicial review is to apply the presumption. Why is there not a presumption or a consideration that says that the judge must look at how determined the wrongdoer was to persist in his unlawful action? That would a consideration too, would it not? There is none of that in the Bill—it is just simply this presumption. I respectfully suggest that it is a heavy presumption, because it is the only one which appears in the Bill or which directs the court to a particular starting point.

As for the specialist judges—and they are specialist judges—the idea that they will not know about this new remedy and consider it is simply barking. Even if the judge had a bad moment and forgot about it, can you imagine any advocate acting for the wrongdoer who wished to have the order stand not drawing his or her attention to the presumption and saying, “This is the starting point, my Lord”? The judge will wake up and think about it. To enact legislation to encourage judges to develop jurisprudence is, if I may say so, one of the least good arguments that the noble Lord, Lord Wolfson, has offered in his whole forensic career.

Judicial review is a discretionary remedy. The judge, having considered whether unlawfulness has been established —that is the first question and let us not overlook it—finds that it has. He then examines the nature of the unlawfulness. Is it fundamental? Is it procedural? Is it important procedural? Is it minimal procedural? Then he or she reflects on all the considerations that have come to bear—in other words, all the facts of the case—and makes a decision. Judges really do not need to have more than the broad discretion that judicial review has always offered, and which has made it one of the most fantastic developments in our administrative law in my professional career.

[Lord Sandhurst (Con)]

My Lords, I oppose these amendments. The power to make a prospective quashing order brings clear benefits. Such an order has more teeth than a mere declaration that a Secretary of State has acted unlawfully. It would be able to indicate that regulations will be quashed within a certain time from the date of judgment unless the Secretary of State in the meantime has properly performed his statutory duties and considered in the light of that exercise whether the regulations need to be revised and, if so, in what form. It is hard to see why that is not beneficial.

Further, the ability to make such orders will be especially useful in high-profile constitutional cases where it would be desirable for the court explicitly to acknowledge the supremacy of Parliament, and in cases where it is possible for a public body, given time, to cure a defect that has rendered its initial exercise of public power unlawful. I note that in his powerful piece in the Times last week, the noble and learned Lord, Lord Brown of Eaton-under-Heywood, wrote that he strongly supported giving the court these powers. As he explained, these powers are not quite so radical as some suggest and, as we have heard, judicial review has always been a discretionary remedy.

The noble and learned Lord pointed out that

“high-profile cases well illustrate how discretion may properly be exercised against giving relief that would have disproportionate consequences for past events”.

He pointed to two examples:

“In Hurley and Moore … in 2012 the Divisional Court declined to quash the ministerial order permitting universities to increase student fees to £9,000. Quashing, the court said, ‘would cause administrative chaos’”.


He also explained that as long ago as 2005 in the House of Lords, in the case of Re Spectrum, seven of the court

“recognised that prospective overruling of erroneous decisions could be necessary”—

I stress that word—

“in the interests of justice where the decision would otherwise be ‘gravely unfair and (have) disruptive consequences for past transactions or happenings’. Although it was not exercised in that case, the power was recognised by five”

members of the court. It will ensure sensible, good administration. It will not bring injustice. These are real benefits.

As for the presumption, I have listened carefully and with the greatest respect to the noble and learned Lord, Lord Judge, but on this occasion I must differ from him. It is only a presumption; it means merely that the court must start from there. It is, as my noble friend Lord Faulks explained, a flag; it points it out; it reminds the court. It does not impose a destination. If there is good reason not to make such an order, the court will be obliged to follow its conscience and depart from the principle—but, if there is not good reason, why should there be a problem? In short, the court is simply prompted to do what good reason dictates.

This clause does not damage the rule of law. It is reasonable and just.