In the debate, this week, justice minister Lord Wolfson said suspended quashing orders (cl 1) gave judges ‘new tools’ while it was ‘appropriate’ to end Cart reviews of permission to appeal decisions (cl 2). However, shadow justice minister Lord Ponsonby warned the government may use the removal of Cart ‘as a precedent to abolish other types of judicial review’.
On prospective quashing orders, crossbencher Lord Pannick said he was ‘surprised cl 1 seeks now to confer on the judiciary a very wide new power to absolve unlawful acts’. He said he was concerned about the ‘nuts and bolts’ which, as the organisation JUSTICE pointed out, mean ‘people who have had to pay tax under an unlawful regulation would be unable to require a refund, and if prosecuted under an invalid statutory instrument would be unable to have their criminal record altered.
‘It cannot be right that a court shall have the power to decide that something which is unlawful shall be treated as lawful’.
Ben Standing, partner, Browne Jacobson, said: ‘Many of the lords were strongly opposed to what they saw as an attempt to interfere in how the judiciary determine remedies (due to the requirements of the new s 29A(9) of the Senior Courts Act 1981).’
Matthew Smith, partner at BDB Pitmans, said: ‘Opponents of cl 2 pointed both to the immediate unwelcome impact the provision, if enacted, would have―for example on those challenging potentially life-changing, even existential, immigration decisions―and to the longer term “sleeper threat” that cl 2 will be used in future as a template to oust the courts’ jurisdiction to review executive action in other important fields of activity.’
