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.