Judicial review reform I: Nullity, remedies and constitutional gaslighting | Mark Elliott | Public Law for Everyone | 6 April, 2021
This is the first in a series of four short posts reflecting on the Government’s response to the Independent Review of Administrative Law (IRAL). Although the Government set notably broad terms of reference for the Review (on which I commented here), the IRAL report itself is generally measured and eschews many of the far-reaching reform possibilities that the terms of reference appeared to contemplate. The Government’s response, in contrast, contemplates changes that go beyond those recommended by the Review — from which it might be inferred that the Review did not go as far as the Government had hoped. One of the areas in which the Government now appears to wish to go further than the Review, and which is the concern of this post, relates to the effect of remedies in judicial review cases and associated matters concerning the concept of nullity. (Subsequent posts will address ouster clauses, the notion of judicial overreach and the wider constitutional implications of the Government’s response.)
The Review itself recommended the introduction of suspended quashing orders, thereby enabling courts to take the sort of step that the Supreme Court did not consider to be properly open to it in Ahmed (No 2)  UKSC 5. In that case, the Court took the view that because unlawful administrative acts (including unlawful secondary legislation) are invalid ‘and of no effect in law’ (in other words, void ab initio), it would not be right to suspend a quashing order: the Court, said the majority, ‘should not lend itself to a procedure that is designed to obfuscate the effect of its judgment’. While there is a certain rigid logic to this position, it has always been difficult to reconcile it with the fact that remedies in judicial review proceedings are discretionary: given that courts can, and sometimes do, withhold relief permanently, it is difficult to understand why it is necessarily improper for courts to do so temporarily.
The Review, however, appeared to share the Supreme Court’s stance that if unlawful acts are regarded as void, suspending quashing orders is problematic. This led the Review to tie itself in conceptual knots by seeking to unpick the notion of nullity itself. It attempted to do so by contending that Christopher Forsyth’s view — according to which ‘a decision-maker who decides unlawfully, does an act which he has no power in law to do’, thereby rendering the act void — is flawed because, according to the Review, it ‘overlooks the elementary distinction between a power and a duty’. The Review then goes on, in a mystifying passage, to attempt to justify this position in the following terms:
Suppose a public body is vested with a power, and a duty as to how it exercises that power. If the public body exercises the power in breach of that duty, it acts unlawfully – but it does not follow that its exercise of that power was necessarily null and void. In fact, the power is exercised unlawfully because it was validly exercised – if it were not exercised at all, then there would be no basis for saying that it had been exercised unlawfully.
This enigmatic attempt to challenge the notion of nullity is at least confined to the relatively modest purpose of seeking to pave the way for the introduction of suspended quashing orders. In contrast, the Government, in its response, goes much further. Among the options on which it is now consulting are the following:
- Giving judges discretion to make remedies, including quashing orders, prospective-only
- Introducing a presumption that quashing orders will be prospective-only in respect of secondary legislation
- Requiring quashing orders to be prospective-only in respect of secondary legislation ‘unless there is an exceptional public interest requiring a different approach’
- Introducing a presumption that quashing orders should be suspended
- Requiring quashing orders to be suspended ‘unless there is an exceptional public interest requiring a different approach’
These proposals are accompanied by a full-frontal assault upon the concept of nullity, such that only a lack of jurisdiction in the narrow, pre-Anisminic sense would render an administrative act or decision void. A ‘presumption against the use of nullity’ is also suggested. And these proposals, it is contemplated, may be supported by legislation that would ‘further clarify the distinction between the Government acting without any power, and the wrongful use of a power that Parliament has granted it’, with only the former operating to make administrative acts and decisions null and void.
A flavour of the Government’s reasoning and underlying agenda will be apparent from the following excerpt from its response, in which it sets out the case, as it sees it, in favour of prospective-only remedies — which would, in effect, breath legal life into unlawful administrative acts and decisions (including secondary legislation) up to the point at which the (prospective-only) quashing order was issued:
In effect, this would mean that a decision or secondary legislative provision could not be used in the future (as it would be quashed), but its past use would be deemed valid. This would provide certainty in relation to government action; if a policy has cost a considerable amount of taxpayers’ money, for instance, it would mitigate the impact of immediately having to set up a compensatory scheme. In turn, this would mitigate effects on government budgeting, which would enable the Government to continue to spend on improving the lives of its citizens. Instead, a prospective-only remedy could use conciliatory political mechanisms to the fullest extent, to set up a compensation scheme that is appropriate and robust, rather than created in a reactive manner.
The Government goes on to say that ‘[i]t is recognised that this could lead to an immediate unjust outcome for many of those who have already been affected by an improperly made policy’, but offers the blithe assurance that such injustices ‘would be remedied in the long-term’ — presumably by means of the ‘conciliatory political mechanisms’ and ‘compensation scheme[s]’ to which the Government would be under absolutely no legal duty whatever to have recourse.
As if these proposals, which risk eviscerating judicial review, were not objectionable enough, the Government then proceeds to argue that all of this is to be done in the service of the rule of law:
The Government considers that legal certainty, and hence the Rule of Law, may be best served by only prospectively invalidating such provisions. Because of their scrutiny, Parliament-focused solutions are more appropriate where statutory instruments are impugned. Ordering a prospective-only quashing of Statutory Instruments would focus remedial legislation on resolving issues related to the faulty provision, limiting the extent to which additional issues have to be rectified due to wide and retrospective quashing.
This conveniently overlooks the fact that another critical component of the rule of law is the requirement of government under law — and that that fundamental principle would be placed in serious jeopardy by preventing or improperly limiting retrospective invalidation of unlawful administrative acts. Doing so would, in effect, enable the Government to legislate at will, confident in the knowledge that anything done under the colour of such secondary legislation — however blatantly unlawful it might be — would be functionally lawful up to the point of the issuing of relief thanks to the courts’ inability retrospectively to invalidate it.
None of this is to deny that the demands of the rule of law can sometimes pull in opposing directions in this area, and that the requirements of legal certainty and legality may be in tension with one another. Nor is it to deny that there may be circumstances in which the former may outweigh the latter. But these are not novel issues; rather, they are ones that can readily be resolved by the courts through their existing capacity to exercise remedial discretion where appropriate. In contrast, the Government’s astonishing proposals amount to nothing other than an attempt to launch an assault on judicial review under the cover of promoting the rule of law. Even in a post-truth age, such constitutional gaslighting cannot be allowed to go unchallenged.Posted in Administrative Law, Constitutional Law
Tagged 2021, constitutional law, Faulks review of judicial review, judicial review, reform
Public Law for Everyone is written by Mark Elliott. Mark is Professor of Public Law and Chair of the Faculty of Law at the University of Cambridge, and a Fellow of St Catharine’s College, Cambridge. He also served, from 2015 to 2019, as Legal Adviser to the House of Lords Select Committee on the Constitution. Mark can be found on Twitter as @ProfMarkElliott. Many of his research papers can be downloaded via his SSRN author page. Views set out on this blog are expressed in a purely personal capacity.
© Mark Elliott 2013–2021
Common Law Constitutional Rights
Published by Hart in 2020 and edited by Mark Elliott and Kirsty Hughes, Common Law Constitutional Rights examines the extent to which the common law can and does protect constitutional rights, taking recent UK Supreme Court jurisprudence on this matter as a point of departure.
Aimed at students taking a range of public law modules, Public Law combines comprehensive coverage of the subject with depth of analysis. Written in an accessible style, it is the UK’s best-selling textbook in the field. The fourth edition of the book, written by Mark Elliott and Robert Thomas, was published by Oxford University Press in 2020.