My Lords, if I were to give my apprentice joiner grandson a tool for his toolbox, I would not say, “In all circumstances, other than quite limited circumstances, this is the tool you must use and ignore the ones you already have”. The Government’s toolbox analogy does not seem to work. I am glad to have the opportunity to raise a question before the noble Lord, Lord Faulks, contributes to the debate—as I hope he will—because perhaps he can throw further light on the clarity of the recommendations of the Independent Review of Administrative Law on the issue we are debating. Paragraph 3.69 considered what would happen if the committee’s recommendation for a non-presumed format for these circumstances were followed and stated that, if Section 31 were amended in this way,
“it would be left up to the courts to develop principles to guide them in determining in what circumstances a suspended quashing order would be awarded, as opposed to awarding either a quashing order with immediate effect or a declaration of nullity.”
It was a very clear recommendation, and the Government should have taken that advice, as they took much other advice from the excellent document produced by the Independent Review of Administrative Law.
I will enter one other point into the debate. It was referred to by the former Lord Chancellor, the noble and learned Lord, Lord Falconer of Thoroton: the issue of adequate redress. The way the phrase appears in proposed new subsection (9)(b)—
“offer adequate redress in relation to the relevant defect”—
worries me. It may not have been drafted with this intention, but there is a very great danger if “adequate redress” is seen as a matter which concerns only the person pursuing the action. It is perhaps too rash to
say “most”, but many judicial review cases, by their very nature, have a far wider effect than simply on the individuals involved in the case. That is, indeed, recognised in the Government’s own formulation of proposed new subsection (8). It refers both to those
“who would benefit from the quashing of the impugned act”
and those who had expectations and
“relied on the impugned act”.
There will be large numbers of people in many judicial review cases who will be affected by the outcome, either because an action they have already taken will be deemed to have been unlawful at the time it was taken or, indeed, because the law on which they have relied to enforce a regulation has now been found not to have been good or effective law at the time. The breadth and implications of judicial review cases—which is why the subject arouses such widespread interest—is potentially threatened if the concentration becomes on “We’ve fixed it for the unfortunate person who appears before us in this case” without having proper regard to the very large number of people who will be affected. Now, courts do have regard to it and that is a feature of many of the cases referred to in the debate. I am suspicious that the Government wording appears to discourage them from doing so.