There have been those who have feared that the eagerly-awaited Independent Review of Administrative law (the Faulks Review) would recommend the end of Judicial Review as we know it. After all, the 2019 Conservative Manifesto pledge was to “ensure that Judicial Review is available to protect the rights of the individual against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.” Others saw it as retribution against Judges who had the temerity to quash the Prime Minister’s decision to prorogue Parliament.

In the event, the actual recommendations are more modest, though, ominously, the Lord Chancellor speaks of an ongoing process of incremental reform. Some proposals, as recommended by the Review appear effectively a ‘done deal.’ For others, going beyond the Faulks proposals, the consultation launched last week is an exercise in testing the water.

The main proposals that may affect the law of consultation are to introduce a greater range of remedies. They have two in mind. One is a presumptive remedy. Another is a suspended quashing order.

A presumptive remedy.

The consultation paper describes this as giving Judges a discretion to rule that a failure that would otherwise make a challenged decision unlawful could be allowed to stand but with a remedy that would apply in the future. It cites a statutory instrument which may have not been lawfully applied – where the Court could rule as to its future administration, but could avoid quashing any decision taken in the past. The Government acknowledges that this could lead to ‘an immediate unjust outcome’ but might avoid disproportionate inconvenience for public bodies. In support, it quotes from the judgment in the Hurley & Moore case where the validity of University Tuition fees was challenged. Although the Government presents this as a discretion for the Courts, it then suggests ways to circumscribe that discretion, one option being by introducing a public interest test.

Suspended quashing orders

These are intended for situations where the defect that would otherwise have rendered the decision unlawful avoids a quashing order pending an opportunity to rectify the error or otherwise reach an accommodation with the claimant. The paper quotes the case of the British Blinds & Shutters Association, which succeeded in having regulations on banning combustible materials declared unlawful because of inadequate consultation. Had a suspended quashing order been used, presumably, the Ministry would have been afforded time to rectify its mistake, conduct the omitted aspects of consultation – and then proceed with the regulation.

One can envisage this being a most attractive option for hard-pressed public bodies who may worry about the disproportionate effect of a minor procedural irregularity sending them back to square one. Equally, one imagines campaign groups whose main aim is to defeat decisions they don’t like – and who alight upon procedural weaknesses as grounds for challenge – being horrified at the prospect that failures could be shrugged off, retrospectively fixed, and subject to no further sanction.

In truth, some procedural failures are more important than others. A breach of the pre-determination (Gunning One) principle cannot easily be addressed through a presumptive remedy (You can get away with it this time, but behave better next time!) or a suspended quashing order (Even though you had unlawfully made up your mind in advance, go away and pretend you haven’t and have another go!)

On the other hand, is it perhaps more realistic to imagine a situation where a claimant can show that consultees were denied some critical information (Gunning Two) or enough time (Gunning Three) as to afford them the right opportunity to offer their views? Here – a pause to enable more information or more time – could make a significant difference, and, through the application of the conscientious consideration principle (Gunning Four) influence the decision. The effect might be to move away from the traditional adversarial role of the Court towards something akin to a conciliation service. Imagine, for example a Judge concluding that the decision might have been lawful if only the Council had engaged more successfully with local stakeholders – and undertaken a genuine consultation on its proposal. A suspended quashing order is then issued, requiring the Council to remedy the deficiency.

The question then arises – who decides whether the actions of the Council fulfil the conditions set by the Court? Most Judges know little about the detailed operational requirements of consultation and engagement. Have they much idea of what amounts to success? Will they look at response rates? Online survey results? Focus Groups? And how in practice will they determine whether the output has been considered conscientiously? And in the meantime, the original decision stands, marooned like a shipwrecked vessel awaiting a mythical lifeboat through the turbulent seas of public engagement?

Such practicalities will no doubt be mulled over as this consultation attracts hundreds of responses in the coming weeks. The Ministry of Justice seems keen to avoid making too many mistakes in the consultation itself; it even promises an output report ‘in due course’ – something we do not always see from Government departments. Much of the debate will centre around the prospect of ‘ouster clauses’ in primary legislation – where Parliament declares that the actions of certain public bodies will be ‘off-limits’ to the Courts. Instinctively, I suspect they will struggle with that one. Only Governments with large, obedient, majorities would get such clauses through Parliament.

So, to summarise, there will be implications for the law of consultation if suspended quashing orders are introduced, and in a minority of cases, they may limit the remedy the claimants obtain. In practice, this may not deter those who believe that the rights of stakeholders and consultees are not being observed. For them, the theatre of the Court and their potential to shine a light on the inadequate or dishonourable practices of public bodies in relation to the public they are meant to serve will continue to be an attraction. At the same time, it may reinforce the pressure on public bodies to get it right first time or to seek a settlement of disputed procedure disagreements through mediation or arbitration at an early stage – and without troubling the Courts. Under the circumstances, it may be fortuitous that the Institute is planning the launch of its Online Dispute Resolution Service in a few short weeks.  A lifeboat is on its way!