Judicial Review and Courts Bill (Fourth sitting)

Thank you, Sir Mark.

On the power to issue a suspended quashing order with the option of prospective-only effect, the Bill says:

“the court must exercise the powers in that subsection accordingly unless it sees good reason not to do so.”

Our amendment 27 seeks to remove the word “must” and replace it with “may”. Given that Government Members are claiming that that is what they really mean, they ought not to have any problem supporting the amendment.

The word “must” clearly directs a judge’s reasoning and interferes with judicial independence and discretion, and the Government claim they do not want to do that. It is not just members of this Committee who have said so. The Secretary of State for Justice, the Lord Chancellor himself, said on Second Reading that the Bill

“gives judges greater flexibility in judicial review”.—[Official Report, 26 October 2021; Vol. 702, c. 195.]

As the Public Law Project pointed out, however, the inclusion of the statutory presumption contradicts that stated aim by tying the hands of judges so that they are required to use the new remedies in certain circumstances. If the powers are to be created, they ought to be the exception and not the norm, as the report of the independent review of administrative law suggests and as a number of Government Back Benchers, including the hon. Member for Bromley and Chislehurst (Sir Robert Neill) and the right hon. and learned Member for Kenilworth and Southam (Jeremy Wright) also suggested.

The PLP helpfully goes on to say why a statutory presumption is harmful, which is that it sets modified quashing orders as the starting point in all cases, which the judge then deviates from only if the court sees a good reason to do so. Even those who support that statutory presumption can list only a small number of cases in which such remedies might be appropriate. From what hon. Members have said this morning, however, they do not support the statutory presumption aspect, so they will have no difficulty in supporting amendment 27.

I do not know whether this is the appropriate time to say so, Sir Mark, but as the hon. Member for Hammersmith is pressing amendment 22 to a vote, I will be happy to withdraw my amendment and to support his instead.