In the absences of the noble Lord, Lord Anderson of Ipswich, who has unfortunately caught Covid, and the noble Lord, Lord Pannick, I shall speak to Amendment 4. This would remove subsections (9) and (10) of the proposed new Section 29A of the Senior Courts Act 1981. This amendment is supported by the Law Society, the Bar Council, the Bingham Centre for the Rule of Law and the Public Law Project.
Subsections (9) and (10) are not based on any recommendation from the Independent Review of Administrative Law chaired by the noble Lord, Lord Faulks. Subsection (9) is either constitutionally dangerous or unnecessary. It reads like a straightforward presumption in favour of making one of the two new quashing orders—a suspended or prospective-only quashing order. If that is a correct reading, it will be for the courts to say what its proper interpretation is. Subsection (9) is constitutionally dangerous and inappropriate as providing a precedent for interference by the Executive with the exercise of judicial discretion. Furthermore, it is contrary to the rule of law in so far as it limits the remedies which are available to set right the unlawfulness of conduct by the state.
In Committee, the Minister said that subsection (9) is not a presumption in the sense of
“trying to fetter judicial discretion or to steer … the courts to a particular decision.”
He said that it will be
“up to the court to decide what remedy is appropriate in the individual circumstances of the particular case”,—[Official Report, 21/2/22; col. 93.]
and that the court’s choice of remedy will, in this case as in others, be guided by what is in “the interests of justice”.
One must ask what the purpose of subsection (9) is. Is it necessary at all? The Minister explained that its purpose is to encourage the development of jurisprudence applicable to the new quashing remedies by requiring the court to consider those remedies positively. If subsection (9) is not, as it appears to be, a straightforward presumption, there is absolutely nothing in the wording of the subsection to support the Minister’s explanation as to its purpose. It is completely unnecessary, following the Minister’s interpretation, because the court is bound to take into account all the circumstances and remedies available in the case of unlawful conduct by the state, and taking into account all the “relevant” matters is specifically required by subsection (8).
Moreover, whatever the reason for the presence of subsection (9), it will encourage further litigation by way of appeal, as it introduces the hard-edged test in subsection (9)(b) that one of the new quashing orders
“would, as a matter of substance, offer adequate redress in relation to the relevant defect”.
That is a hard-edged test and not a discretion. It plainly raises the possibility of widespread disagreement. In short, no good purpose is served by subsections (9) and (10)—only bad purposes—and they should be removed.
1.45 pm