The dull, pragmatic reality of the Judicial Review and Courts Bill – which seeks to give judges a little more flexibility when determining what to order where there has been an unlawful decision by a public body – is a long way from the grand language of the Conservative Party’s 2019 manifesto.
This manifesto stated: “We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.”
The manifesto also proposed a “Constitution, Democracy & Rights Commission” in the first year of government, to “examine these issues in depth, and come up with proposals to restore trust in our institutions and in how our democracy operates”.
“Constitutional” litigation of the kind seen during the Brexit wars was possibly in politicians’ sights rather than the role of the courts in relation to the planning system, but for us in the planning and development world, it was quite feasible that stray fire would see unhelpful changes to the role of the courts in relation to administrative law more generally – and so there was some concern when Lord Faulks QC was appointed in July 2020 to lead an independent review of administrative law, with this examination question: “Does judicial review strike the right balance between enabling citizens to challenge the lawfulness of government action and allowing the executive and local authorities to carry on the business of government?”
Was this going to be a put-up job? As it turned out, the Faulks committee (no “Constitution, Democracy & Rights Commission”) prepared a thoughtful, measured report that broadly gave the current system a clean bill of health, with minor suggested tweaks. The committee had little to say about judicial review in the context of the planning system. While it saw “much of interest” in the way that the establishment of the Planning Court had sped up litigation processes in the planning field, it suggested that it was “perhaps possible only to achieve the above objectives because of the type of challenges that come before this Court, which involve statutory reviews as well as judicial review claims, and for the most part involve practitioners, and not litigants in person who might struggle more with complying with its rules.”
The Ministry of Justice published the report alongside its own more radical proposals. Proposals which were much criticised, and which have now been watered down in the Bill, which was introduced to parliament on 21 July 2021.
What are the Bill’s main implications for the planning system – and particularly for challenges to planning decisions that come before by the Planning Court?
There are only two clauses relevant to judicial review. Clause 2 is of specialist interest only, limiting the ability to challenge by way of judicial review decisions of the Upper Tribunal to refuse permission to appeal from its rulings. Clause 1 is of more practical interest, in introducing the concept of suspended and non-retrospective quashing orders.
Suspended orders
When a decision is found unlawful and would normally be ordered to be quashed (ie no longer of any legal effect, such that the decision and any underlying process needs to be undertaken again), the court would be empowered to provide that the quashing should not take place until a date specified in the order and subject to conditions to be satisfied by that date.
Indeed, if the court considers that a suspended quashing order would “as a matter of substance, provide adequate redress”, it should make the suspended quashing order rather than an immediate quashing order “unless it sees good reason to do so”.
While superficially attractive to address situations where, for example, the defendant authority has been tripped up by way of a procedural omission in its consideration of a planning application, it remains to be seen how often the power would actually be used. After all, if a different decision was highly unlikely even without the error, the courts already should not rely on the error as a basis for quashing and surely in most cases where a decision would currently have been quashed, the decision will need to be taken again with an open mind: difficult against the shadow of a suspended quashing order.
Non-retrospective quashing orders
The court would also be empowered to include a provision in any quashing order “removing or limiting any retrospective effect of the quashing”. This might be relevant where the quashing of a decision may have wider ramifications and expose to challenge other equivalent decisions which may have been taken – for instance, if a decision-maker had been found not to have the necessary power to make decisions, or if a series of decisions turned out to have a legally flawed policy basis or were based on invalid secondary legislation. Again, care would need to be taken by the courts to ensure fairness for those affected. As with suspended orders, the court will be required to take into account various prescribed policy considerations.
While sensibly cautious, the changes only tinker at the margins of the system, whereas there is much in the relatively speedy operation of the Planning Court that could be applied to other areas of administrative law – and which should possibly also be applied to the less speedy Court of Appeal.
Simon Ricketts is a partner at Town Legal LLP
