In 2021, our Public Law and Human Rights team held the first ever Andrew Lockley Public Law Essay Competition.
We launched the contest to give aspiring public law and human rights solicitors a platform to kick-start their careers in law.
After some brilliant entries to the contest, which is named after our first head of public law, we’re proud to present the winner.
Edward Platts was victorious for his well-structured and punchy entry, answering the competition question:
‘Will the government’s proposed changes to judicial review remedies improve citizens’ rights?’
Edward showed critical analysis of the provisions in the Judicial Review, Courts Bill and relevant case law. Throughout the entry, he set out his position on the suggested reforms.
Our judges really enjoyed the flow of the piece, and the broad research included in his essay.
Earlier this year, Edward completed a Post-Graduate Diploma in law, and will start a Legal Practice Course (LPC) in February 2022. Edward will start as a trainee solicitor at Herbert Smith Freehills in August 2022.
Our public law partner Angela Jackman said: “It was a pleasure to read all of the entries. It was great to see how the next generation of lawyers engage with public law issues, which affect society’s fundamental civil liberties.”
Read Edward’s entry in full below.
‘Will the government’s proposed changes to judicial review remedies improve citizens’ rights?’
Introduction
Following its manifesto pledge, the government commissioned a review of administrative law and a subsequent consultation, which has culminated in the ‘Judicial Review and Courts Bill’. There had been widespread opposition from legal practitioners and academics, who feared swingeing attacks on the fundamental nature of judicial review. However, the reforms are less drastic than originally thought. The government’s proposed changes to judicial review include some minor procedural alterations and the abolition of the Cart jurisdiction, but most significantly, they propose to reform remedies. At present, courts have a suite of discretionary remedies at their disposal, as stipulated by the Senior Courts Act, s.29 and s.31, and the government wishes to expand on those capabilities. This essay examines the two most salient changes to judicial review remedies: the introduction of suspended quashing orders and prospective-only quashing orders. It is argued that the proposed changes will not improve citizens’ rights, but rather, actively undermine them.
Suspended Quashing Orders
A suspended quashing order (s.29A(1)(a)) would allow a period of time for the public body to rectify a defect before the order takes effect, and the defect would be treated as if legally valid for that period (s.29A(3)).
The chief advantage of suspended quashing orders is flexibility. From planning, where suspension would allow correction without project delays, to public procurement, where statute only applies to ordinary quashing orders, these changes offer ‘greater latitude’ to courts. This is arguably beneficial to citizens; facilitating worthwhile infrastructure projects, and a further remedy against the government. It also has some practitioner support, and such orders could cultivate more efficient adherence to procedural requirements.
However, this ostensible flexibility comes at great cost - most notably a less rigorous remedial process, and a subversion of the efficiency of public law itself. Public bodies will be less concerned with overstepping their institutional competence if they face a mere suspended quashing order. The change would diminish the results of improper decision-making and ‘weaken remedies that already exist,’ resulting in poorer public practice, and an erosion of the potency of citizens’ rights. Ultimately, ‘justice could be circumvented,’ as rectification would deny a claimant’s putative recovery. This enables the government to sidestep any real consequences or scrutiny.
Moreover, the Supreme Court has already established that courts are able to issue suspended quashing orders, but generally should not, as they ‘obfuscate’ and ‘give the opposite impression’ of judgments. Indeed, Graham observes that suspension is avoided due to outcomes of ‘significant unfairness to the parties.’ That these powers already exist and, if used, drastically undermine citizens’ rights, demonstrates the injustice of their legislative implementation. The government claim that in rejecting Ahmed, they are offering greater discretion to the courts. But Ahmed ‘prioritised the rule of law over executive convenience,’ and these changes represent further overreach from an already powerful executive. In the context of ubiquitous Henry VIII clauses and attacks on the HRA, these “subtle” changes are particularly insidious, representing a wider trend of minimising government accountability.
Prospective-Only Quashing Orders
The Bill proposes to allow courts to remove or limit any retrospective effects of quashing orders (s.29A(1)(b)), meaning all defective actions taken before the order would remain lawful (s.29A(4)).
The benefit of prospective-only quashing orders is that they are cheaper for the public purse. The order would result in a new, lawful scheme, but would prevent any back-dated claims, thus reducing public funds required to pay-out to potential claimants. It also brings a flexibility for claimants in surmounting the ‘House of Cards’ doctrine, allowing a greater chance of recovery without upsetting other judgments.
However, these benefits seem paltry when compared with the egregious impact the orders would have on citizens’ rights, and the rule of law itself. A prospective-only quashing order constitutes a flagrant denial of justice to citizens who have already suffered; both denying relief, and radically undermining the cardinal principle of universal access to justice. For example, if a prospective remedy had been given in RR v Secretary of State for Work and Pensions, the victims of unlawful discrimination would have received no damages, and ultimately no justice. Limiting retrospectivity denies claimants redress against the might of the state (the very purpose of judicial review), and would have ‘a chilling effect on justice.’ It is ‘wrong in principle for such rights to be capable of being overridden by judicial discretion,’ but especially so with no representation in court. It is yet more evidence of the government limiting accountability and reducing exposure to compensation.
Additionally, the changes problematise the separation of powers doctrine. Limiting retrospectivity would draw the courts into the ‘highly-contested policy space’ of considering the public coffers, which constitutes ‘a real risk to the vindication of legal rights’ of citizens. Thus, despite government aims of preventing courts from “playing politics”, the reforms have ironically lent a quasi-legislative power to the judiciary, which both undermines Parliament, and impacts the third-party rights of citizens. However, this is seemingly irrelevant to the government, who wish to limit public accountability whatever the cost.
Conclusion
In conclusion, the government’s changes to judicial review remedies will not improve citizens’ rights, but rather, drastically undermine them. Though the reforms ostensibly seem subtle, citizens’ private rights would be sabotaged, and their justice denied. The changes reduce government accountability, subvert the rule of law, and weaken the public law process. Moreover, the caselaw shows that courts already have these powers, but never use them due to the vast injustice they unleash on citizens.
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