When unlawfulness is not unlawful

Proposals in the Judicial Review and Courts Bill raise important questions about how the law should work

March 08, 2022
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Goncalo Diniz / Alamy Stock Photo

Last year, when the government published its Judicial Review and Courts Bill, lawyers were left puzzled. After a campaign of briefings from No 10 against controversial judgments, many feared an all-out assault on the judiciary. But when the legislation landed it was surprisingly moderate. The proposals were limited to technical-sounding—if important—reforms to the process of appeal from a lower immigration tribunal to a higher one, and seemingly esoteric changes to remedies in judicial review. Onlookers wondered if they had worried for nothing, or if the real reform was coming later, in the form of an assault on human rights

But as the weeks passed some lawyers began to look a little more closely at the judicial review provisions, and they wondered if there was something strange going on. Alarm bells started to ring over the proposals on “suspended and prospective-only quashing orders,” which, beneath the technical jargon, raise some profound questions about how the law should operate. As the bill travels through parliament—it is now in report stage in the Lords—it is worth considering just what these proposed changes entail. Former lord chief justice John Thomas is a considered man but, during my research for this piece, he was moved to describe one element of the legislation as “wholly objectionable.” 

To examine what’s being proposed, it is worth starting with standard quashing orders. These are often used by judges to void the actions of lower courts or public bodies—a standard remedy for an unlawful decision (say, cutting welfare payments or pushing through a housing development without the authority to do so). Suspended orders introduce a delay: they temporarily waive the effect of the quashing, usually with a view to the offending body remedying the fault, finding an alternative legal basis for its policy or preparing for the consequences of the ruling taking effect. A prospective-only order is more innovative still: it treats a policy as void only from the point at which the judgment is made and leaves previous unlawful actions—and their consequences—intact. 

And it is in relation to these provisions that a profound sense of unease has surfaced. In the words of Elizabeth Prochaska, chair of the Public Law Project, the bill “carries a real risk of injustice for people who have succeeded in challenging the state.” 

The central issue is really a simple one. When a policy is announced or a public body takes a decision, individuals—sometimes lots of them—will plan their lives accordingly. If months or years pass before that decision is shown to be unlawful in the courts, how does one remedy the fault without unleashing chaos elsewhere in the chain? What if millions of people have spent their welfare payments, or the developer is halfway through building the housing estate? In some scenarios, the court will simply issue a declaration stating the relevant rights and obligations and leave the parties to work out how to achieve compliance. Another answer is temporary suspension of the quashing order while remedial action is taken (the public body fills out the paperwork it should have done already). Yet another is to leave the past action untouched while prohibiting it in the future.  

And the compromise approach has its appeal. The Independent Review of Administrative Law recommended the power to suspend quashing orders in its report last year. For its chair Edward Faulks, the idea “was to allow greater flexibility to judges to do justice in the particular case,” since “notwithstanding some element of unlawfulness about the impugned decision, the effect of a quashing order can be disproportionate… and have profound effects on third parties.” A hard-and-fast quashing is “a rather blunt instrument.” 

As for prospective-only orders, David Hope, a former deputy president of the Supreme Court, told me situations may arise where “to treat the illegality as always there from the beginning would create very real problems where money has been spent, taxes have been collected and property has been bought and sold on the assumption that this was what the law required. A prospective-only order would have much to be said for it in such circumstances.” There is also a matter of principle in favour: legal certainty is fundamental to the rule of law, and it is not achieved if individuals do not feel able to take decisions that appear lawful at the time for fear they may be judged unlawful in the future. 

But is it compatible with the rule of law deliberately to approve the continued operation of unlawful policies? For suspended quashing orders and prospective-only remedies do just that. In the case of the former the effect is temporary, but there is still something uncomfortable in a court, as former Supreme Court president Lord Phillips put it in the case of Ahmed vs HM Treasury, lending itself “to a procedure that is designed to obfuscate the effect of its judgment.” 

In respect of the latter, something more profound is going on: past unlawful activity, even in a highly contentious area like national security or human rights, is left to stand as valid. For one thing, this presents a philosophical challenge to the basic idea that unlawful actions should be rectified. But there are practical consequences too, since individuals who bring a successful challenge in court would not be guaranteed the same redress—almost by definition, their grievance concerns historic events. Indeed, they might be less inclined to bring a challenge in the first place if they are advised the remedy is likely to be prospective-only. To date there is only one UK case in which a prospective order has been issued, British Academy of Songwriters 2015, regarding copyright restrictions on material for private use (though there are other cases in which a declaration has been used to prospective-only effect). Such an approach should not be normalised lightly.

Yet what is most contentious about the bill is that it seeks to encourage the courts to make orders of this kind—it builds in a presumption that in certain circumstances they will do so. There is already a common law power available to the courts to issue such orders, and previously it has been up to judges’ unfettered discretion to decide when they are appropriate. An attempt by the government to lean on them feels like meddling, especially since the wrongdoer in a judicial review—the party which stands to benefit from these proposals—will often be the government itself. 

“The presumption favouring validating unlawfulness” is “wholly objectionable,” said Lord Thomas. “It circumscribes judicial discretion” and “favours those who have acted unlawfully.”  

What’s more, the incentive to take good decisions would be weakened if public bodies came to expect prospective-only remedies as a matter of course. Thomas told me that judicial review can “encourage good decision-making, by requiring good administration through attention to the law, to relevant considerations and careful reasoning. This presumption which the government proposes will risk significantly undermining that achievement.”  

Lord Carnwath, who served on the Supreme Court from 2012-2020, is open to changing how these remedies work. But he told me: “In principle, I am not in favour of any presumption one way or the other, because cases vary so much. I think that this should generally be left to the discretion of the judge in the particular case.” He stressed that he would need to look at the legislation more closely before reaching a final verdict. 

It may be that suspended and prospective-only orders are sometimes lesser evils. But it should—as now—be up to the judge to determine, free from presumption or interference, when exceptional circumstances merit an inventive response. The measures in the Judicial Review and Courts Bill “will make this and future governments less accountable for their actions,” said Prochaska. It is a matter of taste whether that is an appealing prospect.