The government has made a minor concession in the expectation that it will allow peers to approve its Judicial Review and Courts Bill today.
In the Commons yesterday, the justice minister James Cartlidge confirmed that the government would accept a Lords amendment removing a rebuttable presumption that courts would be required to use new powers limiting the effect of quashing orders — so long as those powers offered adequate redress and there was no good reason not to do so. Quashing orders are made by courts when ministers and others exceed or misuse powers granted to them by parliament.
As drafted, the bill said:
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.
Subsection 1 refers to suspended or retrospective quashing orders. In a post last July, I considered the extent to which this presumption would have fettered the courts’ discretion.
In the House of Lords last month, the former lord chief justice Lord Judge said he was very troubled about the way that the presumption circumscribed suspended or retrospective quashing orders:
It gives the opportunity for inaction to the wrongdoer… Why is there not a presumption or a consideration that says that the judge must look at how determined the wrongdoer was to persist in his unlawful action? That would a consideration too, would it not? There is none of that in the bill — it is just simply this presumption. I respectfully suggest that it is a heavy presumption, because it is the only one which appears in the bill or which directs the court to a particular starting point.
Peers supported an amendment that removed the presumption.
In the Commons yesterday, Cartlidge said:
The government do not accept the argument that the presumption fetters discretion or is in some way dangerous. Its purpose is to precipitate the rapid accumulation of jurisprudence on the use of these new powers. In furthering that purpose, however, we have heard persuasive arguments that it is in fact unnecessary. I am reassured, particularly by the learned former members of the judiciary who contributed to the debates in the other place, that judges will use these powers and consider their use regularly without the need for the presumption. Consistency and predictability for their use are further fostered by the list of factors in clause 1(8). I can therefore confirm that the government will not be bringing back the presumption.
As expected, the government was not willing to accept Lords amendments that would have made fundamental changes to its bill. But it’s thought that this concession, limited though it may be, will be enough to ensure that the legislation is now approved in its current form.
Update 1045: The Public Law Project has been closely involved in briefing MPs and peers on this legislation.
Jo Hickman, the project’s director, said this morning:
The point of judicial review is to help individuals to hold governments to account and protect them from the consequences of unlawful acts. The “presumption” would have chipped away at one of the most important ways in which people can check the power of the state.
This news is very welcome. It is to their credit that ministers have listened, reflected, and acted in the light of evidence-based arguments put forward consistently and in good faith.
While PLP continues to have concerns about how these new quashing orders may work in practice, the most problematic aspect of clause 1 was always the presumption.
We continue to have concerns about clause 2 of the bill, which “ousts” Cart judicial reviews which are used mostly in immigration and social security cases to overturn serious errors of law made by tribunals. Cart JRs have prevented deportations to authoritarian regimes where people risked torture and death, and brought justice to very vulnerable people who were unlawfully denied their benefits.
We urge the government to commit to reviewing how this ouster clause works in practice and to take action if people’s rights are put at risk.