This past week in the House of Lords there was a debate on the Judicial Review and Courts Bill that I wrote about last year.
Clause one would insert a new section 29A into the Senior Courts Act 1981 that would, in turn, grant new powers to the courts in relation to quashing orders. As the relevant minister, Lord Wolfson, pointed out during the debate, “[s]uspending a quashing order means that courts can, when appropriate, allow a decision-maker to make a new decision before the unlawful act is quashed, or put in place transitional arrangements”.
The idea is that this grants new flexibility to the courts but the practical effect of the legislation will likely be quite different. Quashing orders will almost exclusively become prospective only and lose their retrospective effect. In other words, even if a government decision was unlawful in the past, an individual may still not be entitled to legal redress for the wrongdoing. It is tantamount to judicially-authorised government immunity.
In particular it is the wording of the proposed section 29A(9) that is at the heart of the controversy. This states:
(9) If—
(a) the court is to make a quashing order, and
(b) it appears to the court that an order including provision under subsection (1) would, as a matter of substance, offer adequate redress in relation to the relevant defect,
the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so.
As Lord Etherton points out, there are a couple of problems with this:
Use of the word “must” fetters the discretion of the court which is not something that Parliament should do.
The phrase “would, as a matter of substance, offer adequate redress in relation to the relevant defect” will generate a lot of case law to work out what that means exactly.
The problem was that Lord Wolfson, the relevant government minister in this debate, did not ever really engage with the substance of this critique. Instead he attacked the criticism that a number of pressure groups had raised in relation to the bill and just continued to re-iterate that this was merely another tool in the judicial toolbox.
However as Lord Pannick pointed out, this is an incredible step to take if the government is serious about re-balancing the power between the executive, legislature and the judiciary. Giving judges the power to say that an act that was unlawful at the time it was carried out, is now lawful after all just seems to defy any sort of sensible logic. In practical terms it means people who have suffered and deserve compensation could be denied that because of a legal sleight of hand.
As it happens, this is only the latest attempt by the government to bend and break the rules of the UK’s constitution. By this point, such an approach is sadly unsurprising.
In this week’s episode of the podcast we get the answer to a rather existential question: can the Supreme Court hear an appeal from itself? The problem stems from an environmental campaigner and barrister who was fined for leaking a judgment before it was handed down.
Episode link: http://uklawweekly.com/2021-uksc-58/
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Marcus
Surely any reasonable person would have forseen that the rhetoric of Brexitism namely that "We" would take back our sovereignty, would mean exactly what we are now faced with. That is "We" have taken sovereignty and "we" have lost it.