The rise of incrementalism

British politics has another -ism. After Socialism, Liberalism and Thatcherism, we now have incrementalism. Incrementalism was used by the Lord Chancellor to explain why his changes to judicial review are not the largest changes ever, unlike most government reforms, but a working out of modest steps. Robert Buckland QC MP was speaking to Policy Exchange on 21st July about whether there might be judicial overreach and the working of ouster clauses. He advocated incrementalism.

That explained why the Judicial Review and Courts Bill, published the same day, had just two clauses on judicial review.[1]  Modest and sensible ones they are to.

The context is the report of the Independent Review of Administrative Law, chaired by Lord Faulks QC, which looked at judicial review and found not much wrong.  Two of my colleagues in 39 Essex Chambers, Vikram Sachdeva QC and Celina Colquhoun, were members of the panel.  A great range of views, and importantly, information was pulled together for that report, which will stand as a benchmark of the Administrative Court's work.  The report was published alongside the Government's proposals for reform, which seemed somewhat more radical and far-reaching than the panel's views.

The Judicial Review and Courts Bill has ditched the radicalism and instead contains two proposals, which subject to some possible tweaking, are perfectly sensible.

Clause 1 would introduce the potential for suspended or non-retrospective quashing orders when a judicial review finds that a decision has been taken unlawfully.  It proposes to introduce a new section 29A in the Senior Courts Act 1981 which would provide that quashing order may include provision—

  • "(a) for the quashing not to take effect until a date specified in the order, or
(b)          removing or limiting any retrospective effect of the quashing"

Such orders may be subject to conditions.  Those conditions could, presumably, involve steps to review or remedy errors, or the giving of other practical remedies to claimants.

Subject to one point, which is more of form than substance, the making of suspended or non-retrospective orders would in the discretion of the Court.  There is no presumption that orders will be suspended or non-retrospective.  In considering the power, the Court would be required to consider (proposed s29A(8)):

"(a)        the nature and circumstances of the relevant defect;

(b)          any detriment to good administration that would result from exercising or failing to exercise the power;

(c)           the interests or expectations of persons who would benefit from the quashing of the impugned act;

(d)          the interests or expectations of persons who have relied on the impugned act;

(e)          so far as appears to the court to be relevant, any action taken or proposed to be taken, or undertaking given, by a person with responsibility in connection with the impugned act;

(f)           any other matter that appears to the court to be relevant."

The list is perhaps obvious, but (b) is a reminder of Sir Stephen Sedley's dictum that 'Administration beyond law is bad administration'.[2]  Ordinarily, bearing in mind the Court's concern that any reconsideration is carried out with an open mind, rather than with a view to confirming the previous decision, a Court will still simply quash the unlawful decision.  Giving it a half life would rarely contribute to good administration.  A potential use of a suspended order is when only part of a decision is unlawful.  For example, a condition on a consent might be unlawful but there is no dispute that the consent should remain and a form of the condition be applied.  It may be better to keep the unlawful condition in place whilst a decision on a lawful condition is made, rather than to remove the condition or the consent entirely.

Proposed section 29A(9) has attracted some immediate attention – see the question from Joshua Rozenberg in the Policy Exchange lecture.  This would provide:


the court is to make a quashing order, and

(a) 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."

Consequently the Court would be required to suspend the quashing order or make it non-retrospective, unless there is a good reason not to, in certain circumstances.  However that direction to the Court only applies if the suspension or non-retrospective order would offer, in substance, adequate redress.  So a claimant should receive an immediate quashing order, with effect from the decision being made if they need it.  That would be the decisive judgment to be made by the Court and it would be one which the judge would have addressed anyway.  Subsection (9) would not in practice affect how the power would be used.  It may be thought that it is unnecessary and adds a degree of complexity which could be dispensed with, but it is not a shift away from effective remedies for claimants.

The principle should and will be that a Claimant ought to have an effective remedy.  That a quashing order will usually have the effect that the decision will be considered never to have had any legal effect tends not to have a wide or disruptive impact.  Most judicial reviews are concerned with an individual decision and do not directly affect other cases.  Where they do invalidate a general regulation or ministerial direction or establish a particular interpretation of policy, there tends to be little impact on previous decisions.  Judicial review proceedings have to be brought within strict time limits of no more than three months, so it will be too late to apply a particular judgment to many earlier decisions.  If a judgment has a wide impact it is usually because it changes how matters are dealt with in the future, rather than upending a large number of existing decisions.

Where the quashing of, say, a regulation is of more practical importance for previous decisions is where there is an effect in criminal or civil law terms.  Subject to any contrary effect of a particular statue, person is able to defend themselves against a criminal prosecution or administrative proceedings on the basis that the legislation or decision being relied on is unlawful.[3]  They can also in general resist a claim for payment or damages which relies on an unlawful decision[4].

Under the Bill, the Court could quash the unlawful act as it affects the successful claimant, but make the order non-retrospective for the world at large.  That would limit any wider effects, but needs to be considered carefully.  It may be appropriate for the effects of the decision to be wiped out as far as is practical.  There may be other proceedings already underway and those should be allowed to succeed.

The other judicial review change concerns challenges to decisions of the Upper Tribunal to refuse applications for permission to appeal to it.  Clause 2 of the Bill proposes to reverse the Supreme Court's decision in R(Cart) v Upper Tribunal.[5]  The scenario was that the First Tier Tribunal had made a decision adverse to a party.  That person's application for permission to appeal to the Upper Tribunal was then dismissed by the First Tier Tribunal and then by the Upper Tribunal.  The question before the Supreme Court was in what circumstances could that final refusal of permission to appeal be challenged by judicial review in the High Court.  The Government had contended that such judicial review lay only in exceptional circumstances, namely where there had been (a) an excess of jurisdiction in the pre- Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 sense; or (b) a wholesale collapse of fair procedure.  The Supreme Court held that judicial review was more widely applicable, subject only to the 'second appeal' principle that permission to proceed should only be given if the appeal raises an important point of principle or practice or there is some other compelling reason for the court to hear it.

The Bill proposes to make decisions of the Upper Tribunal on applications for permission to appeal final[6] and incapable of further appeal or judicial review, except in the following very limited cases:[7]

"the decision involves or gives rise to any question as to whether—

(a)           the Upper Tribunal has or had a valid application before it under section 11(4)(b),

(b)          the Upper Tribunal is or was properly constituted for the purpose of dealing with the application, or

(c)           the Upper Tribunal is acting or has acted—

(i)            in bad faith, or

(ii)           in fundamental breach of the principles of natural justice."

This has been discussed as an ouster of the High Court's judicial review jurisdiction, which it is, but it fits more naturally within the control of appeals in the courts and tribunals system.  It is common to require permission to appeal to be granted before an appeal can be heard.[8]  Permission can be granted by the court or tribunal whose decision is being appealed, or by those who would hear any appeal.  If permission to appeal is refused by the appellate court or tribunal then that is the end of the case.  The need for finality in legal proceedings means that it is not possible to appeal to a yet higher court.[9]  There may be exceptional circumstances where the proceedings have gone so wrong that the case should be reopened, but the refusal of permission to appeal by the appellate tribunal ought to be the end of the matter.

Of course, no judges an infallible, and no matter how many opportunities for appeal arise, a further opportunity will give rise to some successful appeals.  However the success rate in Cart judicial reviews is around 3%.  This contrasts with 40-50% of other judicial reviews being successful.  The Upper Tribunal is a judicial body, sometimes presided over by senior judges.  The two English Upper Tribunal decisions being considered in Cart were made by two of the leading public law judges: the Senior President of Tribunals, Lord Justice Carnwath and by Mr Justice Ouseley.  Whilst that is not always the case, it is quite sensible to consider that an appellant who has had two unsuccessful attempts to obtain permission to appeal has reached the end of the line.  Limiting the proceedings in that way fits with the conventional approach.

The Upper Tribunal amendments are seen as a possible model for a wider use of ouster clauses.  That has to be considered with care.  There is a great deal of difference between ensuring that judicial proceedings are concluded and preventing judicial scrutiny of the lawfulness of administrative decisions.

[1] At the same time the Government has published its response to the consultation which led to the Bill.

[2] R v London Borough of Hammersmith and Fulham ex p Burkett Court of Appeal, 13 December 2000 at para 29.

[3] See Dill v Secretary of State for Communities and Local Government [2020] UKSC 20.

[4] For a recent discussion on collateral challenge see Lee Marsons and Yseult Marique, UK ADMINISTRATIVE JUSTICE INSTITUTE Collateral challenges – what is their place in the contemporary administrative justice landscape?

[5] [2011] UKSC 28.

[6] Proposed section 11A(2), Tribunals, Courts and Enforcement Act 2007.

[7] Proposed section 11A(4), Tribunals, Courts and Enforcement Act 2007

[8] The principal exceptions are that appeals from the Magistrates Court to the Crown Court or High Court do not need permission.

[9] See Lane v Esdaile [1891] AC 210 and the discussion of the issue in R(Burkett) v London Borough of Hammersmith and Fulham [2002] UKHL 23.