Judicial Review and Courts Bill — House of Lords, 2022-04-27
Topic: Law and Crime
Keith Stewart (Conservative, Centre-right): My Lords, with the leave of the House, in moving Motion A, I will also speak to Motions B and C. A number of changes were made to this Bill in the House of Commons. I will cover both those changes and the amendments tabled to the Bill today Turning first to the Motions on judicial review, the Government have listened to the varied concerns, and the Bill that returns to us puts forward a compromise. The presumption, which was the issue of most concern to your Lordships, is gone, making use of the new remedies entirely discretionary. However, the other changes that your Lordships made to the JR measures, such as removing the ability to limit the retrospective effect of quashing orders and addressing the judgment in the Eba and Cart cases, have been undone in the other place. I will therefore set out again the Government’s reasoning for these measures Starting with prospective-only quashing, the aim of Clause 1 is to provide courts with flexibility in remedies, allowing them to respond effectively to the case before them. Conventional retrospective quashing can be a blunt tool, which sometimes does not allow complex circumstances adequately to be addressed in a remedy. My noble friend Lord Wolfson of Tredegar and others have already set out persuasively circumstances where limiting or removing the retrospective effect of a quashing order would be in the interests of justice. The counter-arguments, I submit, have not really disputed this, but rather raised hypothetical circumstances where such a remedy would likely be inappropriate My view is that we should trust our courts to determine when these powers should and should not be used, with help from the skilled advocates who appear before them, who will no doubt address remedies when they make submissions. That there are circumstances where they would not be appropriate is an argument against this power only if you do not trust courts to use it properly. We have substantial evidence that judges can and do use these remedies to good effect. Canada, another common-law jurisdiction, has made use of these remedies for decades. There, a court will use such a remedy if its ruling involves a substantial change in the law and if issuing a suspended or prospective order will not be unfair to the plaintiffs. Canadian jurisprudence shows a nuanced approach where fairness and harm are consistently considered alongside other factors, such as the proper remit of the court and separation of powers. For example, in the Canadian Supreme Court case of Hislop, the court said: "The key question becomes the nature and effect of the legal change at issue in order to determine whether a prospective remedy is appropriate. The legitimacy of its use turns on the answer to this question." After considering various factors, it went on to say: "They may include reasonable or in good faith reliance by governments … or the fairness of the limitation of the retroactivity of the remedy to the litigants." Finally, the court considered the effects on others, aside from the litigants, drawing on an earlier judgment in the case of Kingstreet Investments Ltd. v New Brunswick in which the court held that taxes collected pursuant to an ultra vires regulation are recoverable by the taxpayer. A similar question was raised by the noble Lord, Lord Marks, at an earlier stage of this Bill. The Supreme Court of Canada’s view was expressed trenchantly: "Where the government has collected taxes in violation of the Constitution, there can be only one possible remedy: restitution to the taxpayer."