Legislative Scrutiny: Judicial Review and Courts Bill Contents

Chapter 2: Quashing orders

The quashing order

15.The provisions of clause 1 of the Bill on quashing orders extend to England and Wales only. In judicial review proceedings in England and Wales the court has a discretion as to what remedy it grants, if any. A range of remedies are available, including the traditional remedies of prohibiting orders (i.e. orders stating that something must not be done); mandatory orders (i.e. orders requiring something to be done); and quashing orders.23 A quashing order is an order that nullifies or invalidates decisions of inferior courts, tribunals, public authorities and any other body or person that is susceptible to judicial review. As well as decisions, quashing orders can be granted in respect of statutory instruments, rules, policies, guidance, circulars, advisory reports and recommendations.24 They are the most common remedy granted in judicial review proceedings.

16.A quashing order ordinarily has immediate effect and renders a decision or measure invalid from the time at which it was made, so also has retrospective effect.25 The retrospective effect of quashing orders can have wider consequences. For example, quashing a statutory instrument could invalidate all of the actions and decisions taken under the authority of that statutory instrument. This can cause administrative difficulties. One of the factors the courts will take into account when deciding how to exercise their remedial discretion is the impact of a quashing order on certainty and “the needs of good public administration”.26 Thus, they may decline to grant a quashing order where the wider consequences of doing so are problematic, which may frustrate the claimant.

The Bill’s proposed changes

17.Clause 1 of the Bill proposes a new section 29A to the Senior Courts Act 1981, which would expand the options available to the courts of England and Wales when exercising their remedial discretion, with the intention of reducing the administrative difficulties caused by quashing orders.27 It makes statutory provision for quashing orders to have two new effects, which can be used “independently or cumulatively”:

18.Subsection 29A(8) sets out the matters to which the courts “must have regard” when deciding whether to suspend a quashing order or give it prospective effect only. These matters include “the interests or expectations of persons who would benefit from the quashing [order]” and of “persons who have relied on the impugned act”. They also include “any detriment to good administration that would result from exercising or failing to exercise the power”. 29A(8)(f) requires the court to have regard to “any other matter that appears to the court to be relevant.”

19.Subsection (9) and (10) of the proposed new section 29A goes further and introduces a requirement that quashing orders with suspended or prospective-only effect are used if they would “as a matter of substance, offer adequate redress in relation to the relevant defect” unless the court sees “good reason not to do so.” When considering whether they would offer adequate redress, the courts must take into account, in particular, any action or proposed action by “a person with responsibility in connection with the impugned act”. Most obviously, this would include “any action or proposal” designed to mitigate the harm caused by the unlawful decision or measure.

20.The requirement in the new section 29A to make quashing orders with suspended or prospective-only effects, if doing so would offer adequate redress, is limited by the addition of “unless there is good reason not to do so”. The Bill does not, however, expressly prohibit the use of suspended or prospective-only quashing orders where their use would not offer adequate redress.

Existing powers of courts in devolution context

21.It is notable that the three devolution statutes already provide the courts of England and Wales, Scotland and Northern Ireland with a statutory power to limit or remove the retrospective effect, or suspend the effect, of orders they make on a finding that:

a)an Act of a devolved legislature exceeded the legislature’s competences;

b)subordinate legislation made by a devolved authority was not validly made;

c)a devolved authority has otherwise acted beyond its powers.29

22.These powers are, however, different to that proposed in Clause 1 of the Bill, as they are confined to devolution issues and, significantly, contain no presumption in favour of giving an order either suspended or limited retrospective effect.

Implications for human rights

23.Allowing the courts to suspend the effect of a quashing order, as recommended by the IRAL, could have benefits for defendants and claimants. Suspended quashing orders could provide an effective remedy, but also give the defendant public authority some time to resolve the administrative difficulties likely to arise before the quashing order comes into effect. This could also have the effect of reducing the number of cases in which the quashing order that the claimant desires is not granted because of the immediate administrative difficulties it would create.

24.Judicial review claimants already face significant obstacles when seeking justice, and it is unfair and unreasonable to introduce changes that could further dissuade them from bringing unlawful action by public authorities before the court.30 The effect of Clause 1 would be that, after having to finance their claim, prove standing, pass the preliminary permission stage, and successfully argue that a public authority has acted unlawfully, claimants could be faced with a presumption that the remedy they receive would be suspended or made prospective-only, and of no benefit to them at all.31

25.Suspended quashing orders could leave a claimant and others suffering from the consequences of an unlawful decision or measure for an additional period. More concerningly, the Government acknowledged in their Consultation document that prospective-only remedies in particular “could lead to an immediate unjust outcome for many of those who have already been affected by an improperly made policy.”32 A quashing order with suspended or prospective-only effect could also effectively validate further unlawful action after the order is made. Some of the responses to the Government’s consultation expressed concern about this proposal more stridently. For example, human rights charity JUSTICE stated that:

This will significantly weaken the protection of citizens against abuse of power and result in considerable unjust outcomes for those impacted by unlawful decisions by depriving individuals of access to a remedy.33

26.It would be unjust for potentially large numbers of people who have been impacted by an unlawful decision or measure to be denied a remedy simply because of the point at which they were impacted. Those affected before the court’s decision are just as entitled to the law’s protection as people who may be affected by an unlawful decision or measure in the future. Furthermore, using a quashing order that has prospective effect only risks denying a claimant in human rights claims of the right to an effective remedy, which he or she is guaranteed under Article 13 ECHR. The legal commentator Joshua Rozenberg QC, in his oral evidence to us on the Government’s Independent Human Rights Act Review, pointed out that that a prospective-only remedy would result in a successful claimant not getting “any benefit from winning the case [except] the warm feeling that they had persuaded the Government to change the law.”34 Some stakeholders have argued that this possibility could make litigants less willing to bring proceedings in the first place, and thus prevent unlawful decisions and measures being challenged and the Government being held to account.35

Adequate redress

27.By imposing an obligation on the courts to use quashing orders with suspended or prospective-only effect where they would offer “adequate redress” unless there is a good reason not to, it appears as though the Government are trying to encourage use of these types of quashing orders wherever possible, rather than the courts simply striking down unlawful decisions or measures.

28.While the terms ‘adequate redress’ and ‘effective remedy’ have similar meanings, the current drafting of the proposed new section 29A(9) gives rise to the possibility that a court might be satisfied a quashing order with suspended or prospective-only effect provides ‘adequate redress’ when it does not meet the standard of an effective remedy for a breach of ECHR rights. As Article 13 ECHR (which guarantees the right to an effective remedy) is not listed in the Schedule 1 to the Human Rights Act, the interpretative obligation in s. 3 HRA will not assist in ensuring that 29A(9) is given a reading compatible with the UK’s human rights obligations under Article 13 ECHR. Adequate redress could become the threshold test for when the power to suspend quashing orders and/or given them prospective effect is used; it is unlikely that a court will grant a suspended quashing order or one with prospective-only effects if it has concluded such relief is inadequate (although it is not impossible that it could conclude that even in these circumstances, other factors justify the use of a suspended or prospective-only remedy). Given the lack of certainty as to how far Clause 1 would protect people’s Article 13 ECHR rights, we believe that the Bill should be amended to require judges to give Convention rights, and Article 13 in particular, due consideration when deciding whether a particular remedy is appropriate.

29.Remedial flexibility allows the courts to provide an appropriate remedy in each case. Providing the courts with the ability to suspend a quashing order is a reasonable addition to the range of remedies available that, if used appropriately, could reduce administrative difficulties, and even benefit claimants. However, a presumption in favour of quashing orders with suspended or prospective-only effects is unnecessary and undermines the remedial flexibility that the former Lord Chancellor claimed was the ultimate goal of the Bill at the time of its introduction. As the Explanatory Notes on the Bill state: “the diverse circumstances of possible cases make it difficult to assume that any one remedy or combination of remedies would be most appropriate in all circumstances.”36 While generally a judge would remain free to choose whether to make a suspended and/or prospective-only quashing order, the Bill does nevertheless make them compulsory in certain circumstances. In this way, Clause 1 appears to be an attempt to weight the scales in favour of the defendant public authority over the claimant.

30.Quashing orders with prospective-only effects pose a more significant risk of denying an effective remedy to claimants and allowing decisions and measures to have legal effect despite being found to be unlawful. Imposing any requirement to use these new remedies, rather than simply allowing the courts to use them where they consider it just, increases the risk that they will be used in a way that denies an effective remedy and undermines the enforcement of human rights.

31.The Government should remove the requirement that judges make quashing orders with suspended or prospective-only effects where they would provide adequate redress and there is not a good reason not to, as this amounts to an unnecessary, albeit low level, intrusion into judicial remedial discretion. Furthermore, the proposed new section 29A(8) should be amended to include in the list of matters to which a judge must have regard when deciding whether to make a suspended or prospective-only quashing order.

23 These prerogative orders were previously known, respectively, as writs and then orders of prohibition, mandamus and certiorari, but were formally renamed in 2004 by amendments to the Senior Courts Act 1981 .

24 For ease of reference, the term ‘decision or measure’ will be used in this Report to cover all the possible subjects of a quashing order

25 The Supreme Court, in Ahmed v HM Treasury (No.2) [2010] UKSC 5, explains that it is not, in fact, the quashing order that has the effect of rendering a provision that is ultra vires (i.e. made without lawful authority) invalid, because anything that is found to be ultra vires already has no effect in law. The quashing order merely emphasises this fact: “The object of quashing them is to make it quite plain that this is the case.”

26 See the dicta of Lord Walker in Bahamas Hotel Maintenance & Allied Workers Union v Bahamas Hotel Catering & Allied Workers Union [2011] UKPC 4 at [40]

27 Judicial Review and Courts Bill, [Bill 152 (Session 2021–22), Part 1. The 1981 Act does not apply to Scotland, and in Scotland the courts do not make orders called ‘quashing orders’.

28 In Ahmed v HM Treasury (No.2) [2010] UKSC 5 the Supreme Court confirmed that “this court has power to suspend the effect of any order that it makes” but, crucially, held that such a suspension would not affect the position at law. In other words, suspending the order would not change the fact that the court had declared the decision or measure to be unlawful (and to always have been unlawful) in its judgment. The key difference the statute would make, therefore, is providing that the effect of suspending the quashing order is to uphold the impugned act until that suspension has concluded (see proposed s.29A(3)). Tom Hickman QC has noted that this change in the law does not, in fact, reduce the power of the Courts vis a vis Parliament, as the Government appear to have intended, but rather substantially increases it: “This would permit, in effect, a Judge to rule: ‘this instrument (or decision) is unlawful – it is outside the powers conferred by Parliament and has no legal basis– but in my discretion I will give it temporary legal effect’.” See Quashing Orders and the Judicial Review and Courts Act, UKCLA, 26 July 2021.

30 See the Joint Committee on Human Rights, Tenth Report of Session 2017–19, Enforcing Human Rights, HC 669, HL Paper 171

31 A point made in the Bingham Centre’s analysis of the Bill: Bingham Centre for the Rule of Law, Judicial Review and Courts Bill: A Rule of Law Analysis, 26 October 2021, p.13

34 Q 58, 59 [Joshua Rozenberg QC]

35 See, for example, the Law Society of England and Wales’ Parliamentary Briefing on the Judicial Review and Courts Bill: “ Even if a prospective-only quashing order is not used in a particular case, its mere availability would serve as a serious disincentive to claimants seeking to bring a judicial review. If a claimant cannot be sure that they will benefit from the judicial review even if it is successful, many will be deterred from pursuing perfectly meritorious claims – with the consequence that more unlawful actions by public bodies will go unchallenged.”

Published: 7 December 2021 Site information    Accessibility statement