By Alison L Young
Sir David Williams Professor of Public Law, University of Cambridge
Judicial review actions enable individuals to challenge decisions of public bodies. Judicial review only examines whether an act of the public body is lawful. Judicial review is not designed to reassess the merits of the decision. For example, if I wished to challenge a decision to refuse to my application for a housing benefit, I could not argue that I believed that I had a good case for receiving the benefit, even though the housing officer had not thought so. I could argue, however, that the housing officer had failed to take a relevant consideration into account or had made a legal error when interpreting legislation setting out the conditions for granting housing benefit.
If I succeed in my challenge for judicial review, the decision of the public body is, normally, quashed. When a decision is quashed, the law treats the decision of the public body as if it had never been made. When this applies to an individual decision, this can provide an effective remedy. But there are situations in which this can give rise to difficulties. What if I brought an action for judicial review to challenge a byelaw enabling housing developments? If quashed, that byelaw would be deemed to have never been made. Does that mean that all of the housing developments which had been granted permission under that byelaw are also now unlawful?
Suspended Quashing Orders
One of the amendments of the Judicial Review and Courts Bill 2021 is to provide a statutory basis for the granting of a suspended quashing order. This would empower the courts to suspend the impact of a quashing order. To return to my example, the court may decide that the byelaw should be quashed, but state that this will only come into effect in three months’ time. This may provide time for the council that enacted the byelaw to mitigate the effects of a quashing order. This may be useful, for example, if the reason for quashing the byelaw was because a local interest group had not been consulted as to whether housing developments should be allowed. Suspending the quashing order for three months may enable the council to carry out this consultation. This may remedy the initial defect in the byelaw and enabling the now lawful housing development to go ahead.
Ahmed v Her Majesty’s Treasury (no 2)
In Ahmed the Supreme Court concluded that delegated legislation which froze the assets of those suspected of funding terrorist activities was unlawful. Problems arose, however, as the delegated legislation was required in order to implement a UN Security Council resolution. Also, by quashing the order, individuals whose assets had been frozen would now be able to have access to their accounts. Could this mean that these assets could be used to fund terrorism, undermining national security?
Lord Hope concluded that suspending the quashing order was necessary to ensure the UK complied with its obligations in international law. The rest of the Supreme Court, however, disagree. Lord Phillips thought that to suspend the quashing order, even if this did only instruct banks to continue to prevent those subject to the order to have access to their bank accounts, would undermine the rule of law. A quashing order makes it clear that an action of a public authority is unlawful. To suspend its application sends the wrong message. How can a measure be unlawful, yet the courts are happy for its legal effects to continue for a period of time? Lord Hope argued that this would not be the case. The judgment had been published. It would be widely known that the order was unlawful, but that the impact of this decision would be suspended to ensure the UK complied with a UN Security Council resolution.
Lord Hope and Lord Phillips were reaching different conclusions in this case as to the application of the rule of law. For Lord Phillips, a suspending quashing order would harm the rule of law. It allows an unlawful measure to still have legal force and effect pending its quashing at a future debate. For Lord Hope, it was not that simple. There is a need to take account of another potential breach of the rule of law – the UK being in contravention of its obligations in international law.
Why would we want suspended quashing orders?
The Judicial Review and Courts Bill 2021 empowers courts to grant a suspended quashing order. It provides a set of criteria to use when deciding this issue. These include an assessment of the nature of the defect, considerations of good administration, the interests of those bringing the action for judicial review and third parties who have taken decisions in reliance on the unlawful act. Courts should also take account of any planned action of the public body in response to the finding that its actions were unlawful. Moreover, a court must issue a suspended quashing order (or an order that the quashing order will only take effect in the future) if this would offer adequate redress to the applicant, unless the court considers there is a good reason not to do so.
This might be useful in decisions like Ahmed, although it is not clear that courts would have decided on the facts of the case to issue a suspended quashing order. Are there other situations in which a suspended quashing order may be useful? In its report, the Independent Review on Administrative law (IRAL) argued that a suspended quashing order may be useful in controversial decisions – mentioning UNISON and the second Miller decision as examples. Rather than taking a decision that some may see as transgressing its proper constitutional role by quashing a decision, the courts could suspend the impact of its quashing order, allowing Parliament the opportunity to legislate in response to the court’s decision.
For example, in the second Miller case, a suspended quashing order may have provided Parliament with the opportunity to ratify the decision of the Prime Minister to prorogue Parliament, perhaps through holding a vote in the House of Commons on whether Parliament should be prorogued or not.
IRAL also mentioned cases where measures that have a large impact are quashed because of a failure to adhere to a procedural requirement that may have made no difference to the outcome of the case. This is similar to the example discussed above, where a failure to consult could be remedied by suspending a quashing order and allowing time for this consultation to take place.
As with most things in public law, the devil is in the detail. A power to issue a suspended quashing order may provide a good means of upholding the rule of law, enabling minor defects to be corrected, or ensuring a quashing order did not result in a further breach of the rule of law. But it may also harm the rule of law, perpetuating the effect of an unlawful act, as well as failing to provide an adequate remedy for those harmed by an unlawful act.
- Lewis Graham blog post explaining how suspended quashing orders may be nothing new.
- Samuel Beswick blog assessing the impact of suspended quashing orders on the rule of law.
- Two blogs by Jason Varuhas – Part 1 and Part 2.
- Mark Elliott’s assessment of the Government’s response to IRAL on suspended quashing orders.