Judicial Review and Courts Bill

Committee (1st Day)

Motion

That the House do now resolve itself into Committee.

My Lords, I beg to move.

On a point of order, my Lords, questions on a Statement should have been for 15 minutes and not for 10 minutes.

My Lords, a Private Notice Question lasts for 15 minutes; a repeat of an Urgent Question lasts for 10 minutes. I believe we are now in Committee on the Bill.

Motion agreed.

Clause 1: Quashing orders

Amendment 1

1: Clause 1, page 1, leave out line 9 Member’s explanatory statement The purpose of this amendment, along with amendments to page 1, line 15, and page 2, line 2, in the name of Lord Pannick, is to remove the proposed power for the court to prevent a quashing order from having retrospective effect, thereby validating what would otherwise be quashed as unlawful.

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.

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.

One such case, to which the Minister referred at Second Reading, was the British Academy of Songwriters, Composers and Authors case of 2015. Regulations that had given the public a right to copy compact discs bought for their private use were found to be unlawful. The High Court quashed them with effect for the future, but noted that while they had been in force, when everyone assumed them to be lawful, numerous private individuals had made copies of their CDs for private use. By declining to quash the rules retrospectively, the court served the interests of legal certainty and left in place the legal protection that the rules had afforded to these blameless individuals. The case is a reminder that these specialised remedies are not only capable of assisting public authorities; they may help others as well, who relied justifiably on the law as it was assumed to be.

My noble friend Lord Pannick, with his incomparable experience of public law, suggests that the ability to grant a prospective-only remedy should be withheld from the judges because, as I understand, it would enmesh them in decisions falling outside their proper sphere. The short answer to his point is that his amendments would not remove the existing common law power to grant this remedy. The most that could be said is that placing the power in statute might make applications for its use more frequent. However, his point deserves to be answered as a matter of substance. It is true that a court deciding on an application for one of these exceptional remedies would need to have regard to the factors listed in new Section 29A(8), but there is nothing particularly unusual in that. Factors of that nature are balanced every time a court of judicial review considers, for example, whether to grant interim relief.

I would suggest that the greater judicial incursion into matters of settled policy may come not from a prospective-only quashing order but from a conventional quashing order with retrospective effect. Though judges notionally declare the law as it has always been, the reality is, as Lord Reid first put it in 1972, that this is a fairy tale and that their rulings often make new law. The noble and learned Lord, Lord Hope, cited in his speech in the Spectrum case an observation that

“to apply an admittedly new rule retrospectively is blatantly legislative however fair or otherwise normatively appealing this may be.”