Conditional quashing orders: A missed opportunity for introducing a new relief in judicial review proceedings?

Introduction

Judicial review is a well-known constitutional mechanism. It allows the Administrative Court, a special division of the King's Bench Division of the High Court, and superior courts to set aside the unlawful decisions of public authorities made in excess of the powers that Parliament has confided in them, ¹ including where they erred in law. ²

Certain countries such as France acknowledge a separate administrative court system that can set aside unlawful administrative decisions and invalidate acts of the French legislature through constitutional review. ³ By contrast, judicial review in English law is subject to the jurisdiction of the ordinary common law courts. Its scope is limited by the doctrine of sovereignty of Parliament. It underpins a regula juris whereby the UK Parliament trumps the judicial and executive branches of government. It can enact or repeal any law as it sees fit. ⁴

This doctrine is problematic in many regards. It is incompatible with a system where the executive, legislative and judicial powers are strictly separated and check and balance each other. By contrast, it underpins a system of balance of powers famously called a fusion of powers by Walter Bagehot. ⁵ The consequence is that courts are limited to a more servile role than they would otherwise have. They cannot challenge parliamentary decisions as emanating from plural consensus. They can only enforce the will of Parliament and sanction power excised by public bodies when it exceeds express legislative intent according to ordinary common law remedies.

Judicial review reliefs are listed in Sections 31(1) and 31(4) of the Senior Courts Act 1981 and Part 54 of the Civil Procedure Rules. They are mandatory orders, prohibiting orders, quashing orders, ordinary declarations, damages and declarations of incompatibility.

A mandatory order is an order that can be made by the administrative courts to compel a decision maker to act in a prescribed way. Similarly, a prohibiting order is an order forbearing a decision maker to act in a particular way where they have expressed an intention that is not yet implemented. Likewise, an injunction is an order directing a decision maker either to act in a prescribed way (i.e. a positive injunction) or forbear (i.e. a negative injunction).

Differently, a quashing order is an order allowing the court to annul an unlawful decision made by a public body ab initio and require that it makes a fresh decision consistent with the court's determination. Superior courts may also use this power to substitute their decision for that of a minor court that erred in law when a single decision is available to the decision maker.

In turn, an ordinary declaration is a decision of the court that aims to clarify the rights and obligations of parties to a proceeding. It is only granted where the question under consideration is certain (i.e. non-hypothetical), where the claimant has a vested interest, and where there is a proper argument for it, not as a default. If the authority under review proceeded with its decision regardless of the judgment, the claimant would retain the right to seek a mandatory, quashing or prohibiting order. As such, an ordinary declaration does not compel the person to whom it is awarded to suffer the unlawfulness of a decision if it were to proceed unreviewed. Instead, it allows a competent authority under review to maintain its decision; however, only after having made further considerations. In practice, it operates as if it were a suspended quashing or mandatory order, although not an order. It identifies failings that are seemingly remediable. In that way, it balances public interest against government activity and mitigates unfairness.

Consistent with the doctrine of the sovereignty of Parliament, a declaration of incompatibility merely allows the administrative courts to declare an Act of Parliament incompatible with the European Convention on Human Rights while only inconsistent secondary legislation may be quashed. ⁶ If claimants claim damages, they must particularise and plead them properly. ⁷

Finally, damages are an uncommon and unusual remedy. Other than for a successful claim under the Human Rights Act 1998, they may only be awarded to a successful claimant if a similar claim in private law would have succeeded. More, they may never be sought alone.

In addition, the UK Government introduced two new reliefs by way of the Judicial Review and Courts Act 2022: suspended quashing orders ⁸ and prospective quashing orders. ⁹

Suspended quashing orders enable a court to suspend an unlawful decision or action until and unless an error is remedied within a specific timeframe set by a court in its decision. No suspended quashing orders have been made by courts since their introduction in 2022. ¹⁰ Mentioned in only one case since their introduction, the court refused to make the order on the ground that it was inappropriate relief to grant the claimant the extension of a change. ¹¹ On the other hand, prospective quashing orders aim to quash an unlawful decision but only from the time of the judgment and for the future. It does not affect past actions even if they affected the claimant. As procedural remedies that do not introduce unfairness, both new reliefs should naturally apply to pending and future proceedings. ¹²

The introduction of these new reliefs manifestly relies on a misunderstanding that these powers did not previously exist at common law. It is predicated on HM Government's misconstruction of Ahmed v HM Treasury (No. 2). ¹³ Far from saying that there is no common law basis for suspended quashing orders, the Supreme Court of the United Kingdom first determined whether it had the power to make that order. Admitting that it had this power, ¹⁴ it then considered whether it was appropriate to use it in the instant case and refused to do so if claimed only to frustrate the effect of its decision. ¹⁵

In fact, common law had long since sanctioned suspended quashing orders before their introduction in legislation. ¹⁶ For example, to suspend legislation for a specified time unless and until it was made consistent with EU law when the UK was still an EU member state. ¹⁷ The same goes for prospective quashing orders. ¹⁸ For example, in Cadder v HM Advocate (Scotland), Lord Hope ruled that there is– ¹⁹

A considerable number of dicta to the effect that the court has a general inherent power to limit the retrospective effects of its decisions.

Even though the latter case concerned judicial interpretation rather than a prospective quashing order, it demonstrates the ability of courts already before the reform to modulate the effects of their decisions and operate a ‘balance of convenience’.

However, courts used these common law powers parsimoniously not to cause significant unfairness to claimants affected by contested decisions. The only benefit of their introduction in legislation is that they encourage courts to grant them more frequently although there is no guarantee that they would. The reason is that although claimants must state what remedy they seek in their claim form, the court has discretion ²⁰ in granting whatever remedy it deems appropriate, combined or otherwise. It can also deny remedies if the claimant's conduct is unreasonable or unmeritorious. ²¹

That being said, it is probably unfair to relegate the role of the administrative courts in judicial review proceedings to a servile law enforcement role. Anisminic v Foreign Compensation Commission and another ²² is at least one example of circumstances where administrative courts have rebutted the provisions of primary legislation, thus entering the fray of constitutional balance. In the instant case, the provision in an Act of Parliament that the decisions of a public body ‘shall not be called in question in any court of law’ was insufficient to remove the jurisdiction of the court.

Essentially, it means that administrative courts in judicial review proceedings exercise restraint and cooperation. This approach is predicated on trust for other administrators to do what is appropriate. ²³ A good example is that of ordinary declarations to which public bodies comply and are expected to comply although they have no coercive effect. ²⁴

However, there are circumstances where that trust may be breached, thus leading courts to take a stand. It is not so to frustrate the desiderata of the executive. It is only to uphold and balance the rights of the public and the individual against government activity. Hence, Lord Denning argued in his typical verve that–

No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning of freedom in the new age. They must be replaced by new and up to date machinery, by declarations, injunctions and actions for negligence… This is not the task for Parliament…the courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare state; but abused they lead to a totalitarian state. None such must ever be allowed in this country. ²⁵

Although judges have been coy to exercise discretion in recent years in light of constant inappropriate government attacks, the above examples evidence so much the import of judicial review as a constitutional safeguard. It balances reasonable expectation and overriding public interest and fairness. It also maintains democratic harmony. ²⁸ This central notion of balance is especially important in relation to proceedings concerning nationally significant infrastructure projects (NSIPs); that is, planning decisions.

NSIPs are large-scale projects concerning the disposal of wastewater or waste and the construction of energy, transport, or water facilities. They may involve works such as the development of offshore wind farms, the construction of roads or roundabouts, railway lines, and suchlike. They are governed by an intricate and heavy legislative and regulatory framework. It requires of decision makers that they undertake complex actions such as environmental, equalities, health and heritage assessments or consultations and suchlike – depending on the nature of a project.

In making the planning decision, it is not uncommon for the decision maker to make an error of law and omit or delay consideration of things the law obliged them to consider in the decision-making process. The consequence is that minor omissions or errors of law in a distinct part of the decision-making process often lead to quashing orders being made once unlawfulness is found. Likewise, where it is uncertain whether that omission would have had a significant impact on the decision made.

The issue with quashing orders is that they compel the decision maker to undertake the whole planning decision-making process from the start, thus causing severe delays and adding to the cost of already resource-intensive projects. While other remedies are available such as an ordinary declaration – which was awarded in R. (on the application of Plan B Earth) v Secretary of State (‘Plan B Earth’) ²⁹ – unlawful decisions made by the relevant Secretary of State in these circumstances are quashed more often than not. It seems disproportionate in light of its cost to the defendant, especially where the omission or negligence is not so significant that it would not have affected the outcome of the decision made substantially. Likewise, where it is unclear if it would have. It contradicts the spirit of balance between reasonable expectation, overriding public interest and fairness that underpins judicial review, and the need to maintain harmony. More so where the decision maker retains discretion in weighing the evidence put to them.

Thus, Plan B Earth paves the way for reflection on the introduction of a new remedy in judicial review proceedings, especially as they relate to planning decisions. This reflection is premised on a need for more fairness and better balance between reasonable expectation and overriding public interest in the context of NSIPs. It could also improve the overall judicial review process whatever the type of decision being reviewed.

In the instant case, the Court of Appeal considered the proposed expansion and construction of an additional third runway at Heathrow Airport. Its decision later attracted negative judicial consideration.

In its decision, the Court of Appeal declared unlawful the designation of the Airports National Policy Statement (ANPS) that the Secretary of State for Transport made under s.5(8) of the Planning Act 2008 to favour the development of a third runway at Heathrow Airport. The reason was that in making that designation, the respondent Secretary of State had failed to consider the Paris Agreement thus making an error of law.

The Court of Appeal deemed this failure so material to the designation that it could only vitiate it. ³⁰ While the court held that the well-established Wednesbury reasonableness/irrationality standard of review ³¹ was the appropriate standard of review, it based its decision on the error of law committed by the decision maker who was misdirected in law. This error fed through the contested decision. ³² However, in accepting in essence that the failure to consider the Paris agreement was so obviously material to the decision made, one may argue that the court also acknowledged implicitly that in failing to consider it, the respondent Secretary of State had acted somehow irrationally or that it could have been another ground to declare the decision unlawful. ³³ The reason is that it is commonly accepted that irrationality includes failure to consider relevant matters. Indeed, Wednesbury provides that if a decision on a competent matter is so unreasonable that no reasonable person acting reasonably could ever come to it, the court has a right to interfere and decide whether the competent authority has ‘contravened the law by acting in excess of the powers which Parliament has confided in them’. ³⁴

Regardless, the Court of Appeal then proceeded to consider whether relief should be granted per s.31 of the Senior Courts Act 1981. It ruled that relief should not be withheld. Observing that the designation was consistent with the Habitats Directive ³⁵ and SEA Directive, ³⁶ it ruled that it would not be appropriate to quash the ANPS at this stage. Noting the Secretary of State's discretion to undertake a review per s.6(1) of the Planning Act 2008, the Court considered it inappropriate to make a mandatory order that would otherwise compel the Secretary of State to conduct a review of the designation considering the Paris Agreement.

Instead, the Court of Appeal made an ordinary declaration whereby the designation is unlawful and prevents ‘the ANPS from having any legal effect unless and until the Secretary of State has undertaken a review of it in accordance with the statutory provisions, including the provisions of sections 6, 7 and 9 of the Planning Act’ 2008. ³⁷

Heathrow Airport, an interested party in the proceedings, appealed the decision. The appeal was granted and the Supreme Court reversed the decision of the Court of Appeal in R. (on the application of Friends of the Earth Ltd) v Heathrow Airport Ltd. It ruled that the Court of Appeal had erred in law.

The evidence submitted did support that the Secretary of State had, in fact, considered the Paris Agreement and had discretion in giving it weight. More so since the UK's obligations under s.1 of the Climate Change Act 2008 go beyond the UK's obligations under the unincorporated Paris Agreement. ³⁸

Albeit the Supreme Court refused to consider the appropriateness of the relief that the Court of Appeal had granted. It deemed it unnecessary given the reversal of the appealed ruling. Concluding its decision, the instant court asserted that:

It follows that HAL succeeds on each of grounds (i) to (iv) of its appeal. It is not necessary to consider the ground (v) which is concerned with the question whether the court should have granted the relief which it did. ³⁹

In practice, the Court of Appeal could have quashed the decision (on the mistaken ground that HM Government did not respect its policy commitments under the Paris Agreement) while making a positive injunction. The effect of the latter could have simply been to compel the Secretary of State to consider whether a review of the decision was required in light of the Paris Agreement without having to make a fresh decision from scratch. Likewise, nothing prevented the Court of Appeal from making an ordinary declaration and supplementing it with a mandatory order to the same effect even though the Secretary of State had discretion to undertake the review under section 6(1) of the Planning Act 2008. The mandatory order need not have compelled the Secretary of State to act; that is, undertake a review. Instead, it could merely have compelled him to consider at least whether such a review was required in light of new evidence which is consistent with Section 6(1) of the Planning Act 2008. Hence, the refusal of the Court to make a mandatory order on the ground that it was inappropriate considering section 6(1) of the Planning Act 2008 is arguable.

Nevertheless, one may see in Plan B Earth the premiss of the UK Government's wish to introduce a new relief in judicial review proceedings during the judicial review reform consultation in 2021. Called conditional quashing orders, they were intended to bring additional judicial flexibility, legal certainty, savings, and improved administrative governance.

The idea underpinning this new relief was to empower courts to withhold a quashing order for a period of time with conditions attached to allow a decision maker to remedy a minor flaw ⁴⁰ or ‘a flaw in a distinct part of the decision-making process’. ⁴¹

Unlike traditional quashing orders which nullify the decision made ab initio, conditional quashing orders would have obviated the need for the decision maker to repeat the whole decision-making process from the beginning. They would have mitigated the effects of ab initio quashing orders, thus limiting the impact on the timeline and cost of NSIPs. ⁴²

Suspended quashing orders – which were mentioned previously and were a recommendation of the Independent Review of Administrative Law – and prospective quashing orders – which were also mentioned somewhere above – readily appear to fulfil the same aim. Namely, they suspend a decision or action unless and until the decision maker remedies an error that the court has identified. It is irrelevant whether there is a mistake in a distinct part of a decision or whether the whole decision is vitiated. They make moot the introduction of conditional quashing orders in law.

It is not clear what conditional quashing orders would bring in this context other than additional redundancy. More so since an ordinary declaration, as seen in Plan B Earth, also achieves the same aim and can be as effective as a suspended or prospective quashing order to mitigate the effects of judicial decisions in light of their impact.

Another reason is that judicial review reliefs may already be granted either alone or combined with any other remedy that the instant court deems adequate within the current system. Courts can, therefore, make an ordinary declaration stating the law while making a mandatory order compelling the decision maker not to act but to consider, at least, whether new facts warrant a different decision. It goes to show that courts already have the possibility to ‘balance conveniences’ within the existing system. They can suspend a decision until and unless it is reconsidered by the decision maker. It makes even more moot the introduction of conditional quashing orders.

In addition, the UK Government acknowledged that the introduction of conditional quashing orders would abet unwanted problems. In its response to the judicial review reform consultation, it noted the difficulties surrounding the introduction of conditional quashing orders and their redundancy. Consequently, it decided not to introduce them. These concerned: ⁴³

The difficulty of ‘determining whether a condition has been complied with in deciding whether this led to a decision being quashed’;

Although redundant, giving conditional quashing orders a statutory footing may enhance the remedial flexibility of courts by empowering them to award such a remedy where they would not otherwise do so. It may also encourage them to be more considerate and award less disruptive remedies, especially where a remedy would have a disproportionate impact on the decision maker such as on the timeline and cost of NSIPs.

A problem remains that of whether courts should give directions to the decision maker as to how their decision and policy should be reconsidered or whether courts should merely require that the decision maker reconsiders their decision given its unlawfulness while it is suspended. It is predicated on the reticence of judges in recent years to enter the ‘dangerous territory’ of policymaking and their acknowledgement that issues of policy should remain with the competent public authority. ⁴⁵ While it is consistent with modern judicial review doctrine, it is in no way a view accepted by all. Not only did Lord Denning and Lord Woolf opposed this view but also adherence to it has not always been true if indeed it ever was.

As Arvind and Stirton demonstrate, up until the mid-20th century, achieving balance between private and public interests in judicial review proceedings involved the development of substantive principles. It purported to improve the practice of administrators and mediate the clash between private and public interests. ⁴⁶

They perceive the shift from a so-called mediating to a public conception of judicial review as a failure of judicial review to subordinate the administrator effectively to the rule of law. They support judicialised administration and judicial interference with public policy and the (de)merits of public policies as a safeguard against government overreach. ⁴⁷

The risk, however, is that judges would enter the fray of policymaking and be encouraged to substitute their views for that of a decision maker according to a subjective construction of the rightness of a decision. The consequence is that judicial decisions would likely lose their legitimacy as subjectivity or judicial bias would introduce legal uncertainty and distrust in the judiciary. It is notably so since ‘rightness’ is an imprecise moralistic criterion that risks undermining the already fragile position of courts which are under constant inappropriate attacks from the government. Hence, it is perhaps advisable that judges stay well clear of policy issues and that conditional quashing orders, if they were introduced, do not involve judicial power to give directions.

While it may be a conservative and literal approach, the primary role of courts is not to make the law or policy but to uphold rights and obligations as sanctioned by law, including exercising control over the law where it is erroneous or contradicts fundamental legal or constitutional principles. Judicial intervention must be limited to matters of law or fact (including matters of policy dressed up as such) and exclude pure policy matters ⁴⁸ to avoid undermining democracy and impairing effective democratic government according to the subjective views of unelected judges. ⁴⁹ Put differently, it is constitutionally orthodox for the courts to intervene in challenges involving matters that are at the more political or ‘(high) policy’ end of the spectrum where their legality is questioned whereas a more deferential approach in the intensity of review and a more finely set balance are more welcome when such challenges involve issues of reasonableness or rationality. ⁵⁰

Judicial restraint is essential to the good functioning of the rule of law if one believes in the previously mentioned spirit of balance underpinning judicial review. The grounds for review set out by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service ⁵¹ (i.e. illegality, irrationality or unreasonableness, and procedural impropriety) are amply sufficient to achieve fairness and the mediatory function of courts in judicial review proceedings without straying into a review of the rightness of policies. They do not limit the jurisdiction of courts whose powers must be unchecked (except in very limited circumstances – de minimis) in an effective liberal democracy. ⁵² Much the contrary, they permit the holding of administrators to the rule of law effectively in a purposive and textual way; however, according to objective criteria. It includes circumstances where the executive acts according to improper motives as evidenced in Miller II ⁵³ or irrationally or based on an error of law.

In allowing the review of the soundness of a policy instead of its rightness, the Wednesbury standard of review and grounds for judicial review are already an efficient tool to reach sensible and lawful policy outcomes. They do so impartially in a way that ‘legal reasoning [embraces] knowledge of the social contexts and effects of official action’. ⁵⁴ Objectively, this achieves Nonet and Selznick's discussion of responsive law as a means of achieving positive policy outcomes, including where policy decisions are premised on an error of law or are improper. ⁵⁵

Therefore, one must not see regression in the evolution of judicial review since the mid-20th century or a contradiction of the so-called mediatory role of courts as Arvind and Stirton so strongly contended. Instead, this development should be read as an effective rationalisation or objectivisation of the purpose of judicial review. Most would accept that its primary aim is to review the lawfulness of a decision, not to determine the rightness of that decision and correcting it by substituting judicial determination for it. Otherwise, the purpose of sending back the decision to the decision maker for them to remake their decision would also be defeated. ⁵⁶ In this way, objectivity provides safeguards to accusations of constant, subjective, overreaching judicial interference purporting only to frustrate the will of the majority. It also supports effective cooperation between the judicial and executive functions of government.

Moreover, in awarding a remedy, courts necessarily and already, even if only implicitly, strike a balance between what is fair and private and public interests. Granting permission to apply for judicial review and subsequently holding a substantive hearing is tantamount to acknowledging that a wrong impeding on an individual right has been committed. It, in turn, must be corrected by the respondent authority for the benefit of the wider public interest if it is averred. The public interest is much more than the sum or collection of individual interests.

There is hardly any ‘radical’ departure from previous interpretations, pace Arvind and Stirton. ⁵⁷ Instead, the development of judicial review in recent years should perhaps be seen as putting more emphasis on rational and legitimate self-interests benefitting all or generating societal benefits at large. Hence, self-interest is subsumed under public interest once permission to apply has been granted and plays only a marginal role at the full hearing (‘substantive stage’). Put simply, the balance between private and public interest has not been effaced as strongly as Arvind and Stirton claimed. Their view may be at worst hyperbolic and at best caricatural as the same aims and balance are still being achieved in the current system but perhaps with more restraint and objectivity which is another debate.

However, recent judicial decisions quashing planning decisions show that the current system could do with more balance and fairness between government activity and public and private interests, especially in light of the disproportionate effect of quashing orders on NSIPs. Put differently, there is still a need for a better balance to be struck between the necessity to ensure that public bodies act lawfully, rationally, appropriately and fairly, and the rights that individuals derive under the law and public interest.

Against this background, this article discusses the merits of introducing conditional quashing orders in legislation to help achieve more balance between interests in this area even if they may be redundant. It does so by evaluating their scope for improving the system (especially regarding NSIPs) and maintaining fairness in judicial review proceedings according to two possible alternatives.

First is their introduction as a relief predicated on a subtle distinction between excusable immaterial errors (‘minor defects’) and inexcusable substantive effects. It entails assessing the feasibility of working an explicit distinction between the severity of different types of errors and its practical consequences, especially in light of the imperative to strike a better balance between public and private interests and government activity.

Second is their introduction as a court case management power to achieve the same in relation to NSIPs. Evidence from Kenya regarding court case management powers will be used to provide a fresh perspective as to the benefit of rethinking judicial review in England and Wales and introducing conditional quashing orders as an interim relief at the leave/permission stage to achieve more judicial flexibility and balance. It is presented as an alternative to their introduction as a standard judicial review relief although both could co-exist despite different ideologies.

In weighing the advantages and disadvantages of both approaches, the article formulates warnings and suggestions for the policymaker to consider when deciding whether conditional quashing orders should be introduced or parked for good. Simultaneously, the article makes wider proposals to encourage a general rethink of the judicial review framework to achieve the previously mentioned objectives of fairness, balance, and proportionality.

Distinguishing between minor and substantive defects: Prospects of introducing conditional quashing orders as a relief in judicial review proceedings

English courts already recognise an implicit distinction between minor defects and substantive defects. On the one hand, minor defects are regarded as not so fundamental that they cannot be remedied or excused. ⁵⁸ More so where it is uncertain whether ‘the outcome for the applicant would not have been substantially different’. ⁵⁹ It prevents undue, disproportionate delay to urgently needed projects of national importance which are in the public interest. On the other hand, substantive errors are regarded as irremediable. They go to the very root of the decision made and are not merely (minor) procedural flaws.

Put differently, judicial decisions acknowledging fundamental flaws as a justification for quashing unlawful decisions made by public bodies imply, even if only doctrinally, that the severity of the flaw undermines the public decision. They suggest that had that flaw that goes to the very root of the decision not been made, a substantially different decision would have been reached. It includes circumstances where it is unclear what that outcome would have been. The evidence is homelessness appeal which is akin to judicial review. Holmes-Moorhouse v Richmond LBC ⁶⁰ makes it clear that minor errors that do not undermine a decision as a whole can be overlooked. Something similar is decided in R. (on the application of Miles) v Tonbridge and Malling BC which is discussed further below. ⁶¹

While it is true that section 84 of the Criminal Justice and Courts Act 2015 and section 34 of the Senior Courts Act 1981 are not concerned with the gravity of the error but only with the likelihood of substantially different outcomes for applicants, the consideration of the likelihood of the contested defect leading to a substantially different outcome for the applicant appears to support an unacknowledged distinction between material and immaterial errors and substantive and minor defects. It could serve as the basis for the introduction of conditional quashing orders as a new relief in judicial review, especially where it is unclear whether the outcome would have been different for the applicant when a mistake is made in a distinct part of the decision-making process.

This vindicates the idea of balance and fairness previously discussed. It would mitigate the consequences of quashing orders on NSIPs while suspending an unlawful decision for the aggrieved party, thus balancing the rights of the public against government activity. It would mean determining the circumstances where an error may be deemed minor (immaterial) or substantive (material). Reflection on existing case law may help establish this distinction pragmatically.

For instance, the case of Pearce v Secretary of State for Business Energy and Industrial Strategy concerning a development consent order (DCO). The Administrative Court quashed the decision of the decision maker on the ground that he had insufficient information to enable him to evaluate and weigh the likely environmental effects of the proposal and make an evaluation. The court argued that–

However, the consequence of the legal errors made by the Defendant is that the court does not have any notion as to what the evaluation of cumulative impacts by the Defendant would have been if he had considered the matter. The court does not even have an idea as to how the Examining Authority evaluated the cumulative impacts, because they too decided not to do so. It would be impermissible for the court to make findings on that issue for itself. To do so would involve entering forbidden territory of assessing the merits of a public decision under challenge by way of judicial review…In my [judgment], there is a fundamental flaw in the argument relying upon s.31(2A) which cannot be overcome. ⁶²

Consequently, the SST breached the Infrastructure Planning (Environmental Impact Assessment) Regulations 2009 (SI 2009 No. 226 3) as amended and transposing Directive 2011/92 ⁶³ into UK Law. In so doing, he also contravened domestic public law more generally (i.e. the Planning Act 2008). When read together, these provisions require that before granting a DCO, the decision maker be satisfied that they have sufficient information enabling them to evaluate and weigh the likely significant environmental impact of the project.

Therefore, the High Court ruled that in granting the DCO (i) while observing that he had insufficient information, (ii) delaying the assessment of the cumulative significant environmental impact of the first project to a later application for a DCO for a connected project, (iii) whereas the cumulative impacts of both projects should have been evaluated and weighed before granting the first DCO, (iv) the SST acted not only irrationally per Wednesbury irrationality/unreasonableness but also inadequately from a legal perspective. ⁶⁴

Even where it is permissible to defer consideration per R. (on the application of Larkfleet Ltd) v South Kesteven DC, it is only possible where the development of the first project, although dependent on the second project, relies on a strong, independent planning need distinct from the development of the other. Put differently, the grant of a DCO per Kesteven would have only been possible if the first and second projects had not been part of a single cumulative project, the same project, or were not closely linked. It was not the case in the instant case. ⁶⁵ Therefore, the decision of the SST was irrational. ⁶⁶

In the case of R. (on the application of Save Stonehenge World Heritage Site Ltd.) v Secretary of State for Transport, the Administrative Court quashed a DCO granted by the SST for the construction of a new dual carriageway and tunnel at the Stonehenge World Heritage Site. The reason was a ‘material error of law’ which vitiated the SST's decision. ⁶⁷

In granting the DCO, the SST had failed to consider the appraisal in the Environmental Assessment and Heritage Impact Assessment, which was a mandatory material consideration to the decision. Thus, he failed to consider how the decision would affect all heritage assets. The Court found that–

The SST was not given legally sufficient material to be lawfully able to carry out the “heritage” balancing exercise required by para 5.134 of the [National Policy Statement for National Networks (“NPSNN”)] and the balancing exercise required by section 104 of the [Planning Act] 2008. In those balancing exercises the SST was obliged to take into account the impacts on the significance of all designated assets affected so they were weighed, without, of course, having to give reasons which went through all of them one by one…the additional effect of that legal error is that the planning balance was not struct lawfully. ⁶⁸

Pearce and Save Stonehenge World Heritage Site Ltd warrant a practical distinction between fundamental flaws (substantive, inexcusable material errors of law) and basic flaws (minor, strictly procedural and excusable defects). While the former cannot be overcome and can only lead to quashing, the latter, although so ‘obviously material’ to the decision, are remediable. In particular, where it is uncertain whether having considered other elements that were up to them, the decision maker would have reached a substantially different decision if they can exercise discretion. ⁶⁹

It means that consistent with the first category of considerations set out in Fewings ⁷⁰ and similar to Energy Solutions EU Ltd v Nuclear Decommissioning Authority, ⁷¹ a distinction could be worked out practically between breaches which manifestly and gravely prove an authority's disregard for their obligations, and procedural defects and basic invalidating flaws. The former justifies the quashing of the contested decision ⁷² while the latter does not necessarily prevent a decision maker from making the same decision and may be undeserving of quashing.

The practical consequence is that following the finding of unlawfulness, the determination of the remedy, if it is not withheld, should focus on weighing the severity of the flaw and operating a balance of convenience. Admittedly, the latter is already operated in practice as the Senior Courts Acts 1981 already acknowledges the ability of courts to make a declaration or injunction where ‘it would be fair and convenient’ to do so in ‘all the circumstances of the case’. ⁷³ Put differently, considerations of fairness necessarily imply the weighing of the severity of a defect against several sanction outcomes available, especially where the outcome for the applicant would not have been substantially different or where this outcome is unclear. Likewise, to consider the likelihood of a different outcome for the applicant had the mistake not been made is tantamount to considering the severity of the defect in and of itself, at least doctrinally.

In this context, the opportunity for introducing conditional quashing orders is obvious. They would have the same effect as declarations and positive injunctions combined; that is, the decision would be suspended, and the public authority would be compelled to rectify the illegality or unlawfulness of its decision prior to remaking it with or without directions. They would not, however, be compelled to act in a particular way; that is, the outcome would not be prejudged as to whether they would be able to proceed with or would have to withdraw their decision. The decision maker would merely be compelled to consider whether a review of their decision is needed given new available facts according to the determination of the court while retaining policy discretion. This would mitigate the adverse effects of ab initio quashing orders on NSIP decisions and offer reprieve to the decision maker without affecting their timeline and costs significantly.

However, conditional quashing orders, as a new relief, would be inopportune if the time allotted to the decision maker to reconsider their decision were to be determined by courts according to an arbitrary timeframe. Namely, if the decision was suspended not until and unless the decision maker reviewed it but for a set time decided by the court before hearing the matter a second time to ensure that the unlawfulness has been remedied appropriately. The reason is that NSIPs involve intricate issues and reflections that may not be solved and achieved with celerity. It is notably so where further consultations and expert assessments need to be commissioned. To avoid rushed decisions, the decisions should be suspended until the decision maker is satisfied that the unlawfulness has been fully remedied according to the previous determination of the court. Then, they should be able to notify the court for verification at an ulterior second hearing.

Still, this would have undesirable consequences as it would lengthen judicial review proceedings and induce additional litigation costs. For these reasons, it is submitted that conditional quashing orders should not be introduced as a new relief in judicial review proceedings; even if only to encourage judges to give less disruptive remedies regarding NSIPs. But these impracticalities may be overcome by introducing them as a court case management power instead, which implies a reform of the permission stage. This is presently discussed in turn.

Conditional quashing orders as a court case management power

A court case management power denotes the power and duty of courts to deal with cases justly in accordance with the overriding principles of justice. It entails such things as identifying the real issues of cases and the needs of parties and witnesses promptly, assessing what needs to be done at pace and setting out a clear timetable, discouraging delays and avoiding unnecessary hearings, etc. ⁷⁴ Much of this is done at the pre-trial stage and could be done at the permission/leave stage in relation to judicial review to avoid the adverse effect of disruptive remedies at the substantive stage. More so when an unlawful decision suffers only from a minor defect or a defect in a distinct part of the decision-making process that is easily remediable.

Introducing conditional quashing orders as a court case management power and interim relief would have the benefit of overcoming the difficulties mentioned above regarding their introduction as a standard relief. It is notably so regarding the need for a second hearing. It would necessitate the transformation or rethink of the permission stage to give judges sufficient flexibility to balance between public and private interests and government activity at an early stage. It would allow time savings and limit the potential impact of disruptive remedies being made at the substantive stage on NSIPs.

Under the Civil Procedure Rules, courts already have the power and duty to deal with cases fairly and at proportionate costs. ⁷⁵ In other words, courts have the power and duty to encourage cooperation between litigants, identify the subject matter of litigations pre-emptively, dismiss issues summarily if they do not require full investigation and trial, assist parties in compromising at every stage, give directions to parties to prepare a dispute for trial, and suchlike. ⁷⁶ The purpose of the permission stage in judicial review is precisely to weed out cases that do not have an arguable error of law. In granting leave to apply for judicial review, courts recognise that the matter has a chance of success if not at face value at least in open court following renewal of the application.

The benefits of granting courts a new case management power in the form of conditional quashing orders would be to reduce litigation costs and expedite judicial review hearings. It is predicated on courts identifying an arguable error of law in a decision in whole or in part. The condition for conditional quashing orders, however, is that the mistake must not go to the very root of the decision. It requires a distinction between substantive errors and minor errors which the arguments in the previous section help identify in this context. It would limit the risk of ab initio quashing orders at the substantive hearing which may have an adverse effect on the timeline of NSIPs. More so since given the discretionary nature of remedies at that stage.

The purpose of the substantive hearing, if it is not dismissed at the permission stage could, thus, transform into an expedited process similar to a rolled-up hearing focusing only on assessing whether the potential unlawfulness has been remedied. It could be so either upon notification by the defendant that they have taken the necessary steps to guarantee lawfulness or within a timescale set by the court subject to the limitations previously discussed. Meanwhile, the defendant's decision would be suspended. It avoids unfairness for the claimant and allows a proper balance of convenience and interests.

Hence, the introduction of conditional quashing orders as a court case management power may also help mitigate the additional costs NSIPs would incur given that an arguable claim carries the risk of a quashing order being made at the substantive stage. Put differently, conditional quashing orders, as a court case management power, could avoid the uncertainty of a substantive hearing and provide a more proportionate response to a matter in dispute at an early stage – and even dismiss the need for a substantive hearing – while mitigating costs and providing an adequate timeline for the remediation of minor, procedural defects.

The existing jurisprudence on interim reliefs and interim judgments can inform when it may be appropriate for courts to use conditional quashing orders discretionarily at the permission stage after they have identified a possibly unlawful but minor and arguable defect. It is used below as a comparative blueprint; that is, only to bring about, draw up and outline a distinctive operating model for conditional quashing orders to operate. It is notably so since interim reliefs are usually subject to strict conditions in terms of time limits and the demonstration of urgency on the part of the claimant. ⁷⁷ These would, otherwise, limit the circumstances when conditional quashing orders could be sought and made.

An interim judgment denotes a decision by a court in civil proceedings that deals only with a part of a matter in dispute while deferring its final decision to a later final hearing that ends the action. The benefit of this approach is the balance of convenience that it affords between public and private interests and government activity. It also mitigates the risk of ab initio quashing and their adverse effects on NSIPs if they were to be awarded at the substantive stage. More so since quashing requires of the decision maker that they remake their decision from scratch, which is detrimental to NSIPs. It could severely impact their timeline and costs disproportionately where an immaterial error (i.e. a defect that does not go to the very root of the decision) is not so fundamental that it cannot be overcome. As said elsewhere, it is due to the discretionary nature of reliefs in successful judicial review claims. Even if courts may make a suspended or prospective quashing order or combine remedies to reach the same when determining whether relief should be granted, there is no guarantee that they would do that. Introducing conditional quashing orders as a court case management power could, therefore, remedy that and reinforce legal certainty. It could give courts more incentive to award less disruptive remedies and exercise positive restraint.

Akin to an executory declaration, the introduction of conditional quashing orders as a court case management power would offer reprieve to the defendant where an error is not so fundamental that it cannot be overcome. For instance, when having considered all relevant provisions, a decision maker omits to consider the Paris Agreement while it is uncertain if, even having considered this distinct procedural element, the decision maker would have reached an otherwise substantially different decision. Likewise, where courts are uncertain about the impact of an omission such as conducting a cumulative impact assessment, or how these have been conducted. It would avoid further disproportionate delays and costs in the delivery of NSIPs where the administrator can exercise discretion in what weight to give to a mandatory consideration.

Existing case law on interim relief in judicial proceedings informs how conditional quashing orders could operate in practice as a court case management power. It also provides insight into how it could simultaneously help safeguard the interests of all parties where it is fair and convenient to do so in all the circumstances of the case (i.e. where there is only a distinct procedural defect that potentially makes the decision unlawful).

The Queen's Bench Division of the High Court ruled in R. v Ministry of Agriculture, Fisheries and Food Exp. Monsanto Plc (No.2) that there is a strong presumption against interim relief in public law disputes. The reason is the public interest and the necessity to ensure that the decisions of public bodies acting within the powers that Parliament has confided in them are respected. ⁷⁸ However, the jurisprudence of the English courts admits the award of interim declarations, stays of proceedings, and interim injunctions. These could warrant the introduction of and help delineate the parameters of conditional quashing orders more clearly if they were introduced as a court case management power.

Regarding interim injunctions, administrative courts hold the decision of the House of Lords in American Cyanamid Co v Ethicon Ltd on a matter of private law in high esteem. ⁷⁹ The House of Lords established a test to determine whether an interlocutory injunction can be granted. It requires the even balancing of several interests and the preservation of the status quo when it is the case. These interests consist of establishing:

Whether there is a serious question to be tried.

In R. v Secretary of State for Trade and Industry Exp. Trades Union Congress, Lord Justice Buxton clarified that the grant of an interim injunction is exceptional. It is at the discretion of ‘trial’ courts and subject to conditions. These are

The balance of convenience, the concurrent elements that the court has to take into account in a case such as the present are firstly, the strength of the case asserted by the Claimants in the sense of its prospect of success in the European Court of Justice; and, secondly, the respective loss to the parties should the declaration sought either be granted or not be granted, and in due time either one or other of them is successful in the European Court of Justice. ⁸³

Likewise, the jurisprudence of the English courts warrants stays of proceedings in judicial review proceedings based on an appropriate balance of convenience provided the disputed decision constitutes ‘proceedings’ narrowly construed; that is, the process or procedure whereby a public law decision is made. ⁸⁴ In R. (on the application of H) v Ashworth Hospital Authority, Lord Justice Dyson ruled that

To summarise, I consider that there is jurisdiction to grant a stay even after the decision of the tribunal has been fully implemented. But the jurisdiction should be exercised sparingly, and where it is exercised the court should decide the judicial review application, if at all possible, within days of the order of stay. ⁸⁵

Differently, the Civil Procedure Rules make provisions for interim declarations^{. 86}

In comparison, Kenyan law, which is based on English common law, offers some perspective regarding how this blueprint could be used and adapted further to establish conditional quashing orders in English law as a court case management power.

Section 11 of the Fair Administrative Action Act 2015 makes provisions for courts to set ‘aside the administrative action or decision and [remit] the matter for reconsideration by the administrator, with or without directions’. ⁸⁷

In Taib A. Taib v The Minister for Local Government & Others Mombasa, relying on the English case of Ashworth, ⁸⁸ the High Court of Kenya ruled that: ⁸⁹

The purpose of a stay order in judicial review proceedings is to prevent the [decision maker] from continuing with the [decision-making] process if the decision has not been made or to suspend the validity and implementation of the decision that has been made. It is not limited to judicial or quasi-judicial proceedings as some think. It also encompasses the administrative [decision-making] process (if it has not yet been completed) being undertaken by a public body such as a local authority or minister and the implementation of the decision of such body if it has been taken. A stay is only appropriate to restrain a public body from acting. It is, however, not appropriate to compel a public body to act.

What these provisions and dicta mean is that in circumstances where there is an arguable unlawful decision, Kenyan courts can do either one of two things. On the one hand, forbear the decision maker to act in a particular way where they have expressed an intention that is not yet implemented and remit the decision to the public body for reconsideration. On the other hand, suspend a potentially unlawful decision from the time of the judgment and for the future until and unless it is reconsidered by the public authority who made it. These powers strike the eye as being functional analogues to prohibiting orders and suspended quashing orders although interim reliefs. They can be awarded with or without conditions.

However, these remedies are not granted easily. On top of demonstrating an arguable cause, the claimant must also demonstrate the urgency of remedying a situation which, if it were not remedied immediately, would frustrate the purpose of judicial review by rendering the proceedings nugatory. The latter highlights a standard of review that is extremely high. It requires that the claimant demonstrates that if the decision is not suspended, he would incur disproportionate and irreparable harm. ⁹¹

In doing so, Kenyan courts do some fact-finding at an early stage, at least to the extent that they consider the completeness or continuing nature of the unlawfulness. The consequence is that quashing orders in this paradigm are limited to circumstances where unlawfulness is averred and the decision has already been fully implemented. They may also be paired with conditions making them fulfil the same role as the recently introduced suspended and prospective quashing orders in English law at the leave stage. This makes Kenyan law more pragmatic than English law and somehow avant-garde as it encourages cooperation between the judicial and executive functions of government and the preservation of the status quo.

Put differently, Kenyan courts have a limited ability to consider the merits of a decision at the leave stage to decide whether a possibly unlawful decision must be stayed until its full merits are reviewed at the substantive stage once leave is granted for a motion for judicial relief. ⁹² It is predicated on the jurisprudence of the Supreme Court of Kenya which encourages judges to move away from the traditional procedure-focused nature of judicial review to consider the merits of an impugned decision, especially where the review relies on a violation of a constitutional principle. ⁹³ It is in keeping with the reform of the Kenyan constitution in 2010 which extended the remedies that can be grated in judicial review proceedings to allow courts to give declarations of rights, an injunction, and a conservatory order where appropriate. It is a welcome development since absent an assessment of some form of merit at the leave stage, courts would not be able to determine whether an unlawful and possibly irreparable harm is being or has been committed and deserves to be remedied in the interim.

Altogether, these considerations, even those merely persuasive of the High Court of Kenya, inform the outline and potential scope of conditional quashing orders if they were introduced as a court case management power. A good reason for considering the Kenyan example is not only that it is based on English law but also that it continues to follow English law while departing only so slightly from impractical provisions and modernising them in a way that can inspire English law. This closeness is illustrated by the previously mentioned Fair Administrative Actions Act 2015 which emphasises the need for administrative actions to be expedient, efficient, lawful, reasonable and procedurally fair. It also introduced a principle of proportionality, thus moving Kenyan judicial review away from Wednesbury irrationality/unreasonableness. ⁹⁴ It mirrors the test of proportionality for judicial reviews under the Human Rights Act 1998. ⁹⁵

The advantage of the Kenyan jurisprudential approach if it were adapted is that, on balance and at an early stage, a potentially unlawful decision could be suspended until a procedural defect is remedied by the defendant public authority with or without directions. The proviso, however, is that the defect must be minor in the case of conditional quashing orders although this could apply regardless of the severity of the error and focus only on a determination of proportionality. It expedites the judicial review process and avoids the need of a second substantive hearing. Also, it avoids unfairness for the affected claimant since it withholds the decision until it is reviewed. Meanwhile, it offers reprieve to the decision maker who can remake their decision by fulfilling the steps they had omitted without having to restart the decision-making process from the word go. It has obvious advantages for NSIP decisions by limiting the impact of disruptive quashing orders on their timeline and costs. However, it entails a departure from modern judicial review orthodoxy.

Under conditional quashing orders, reviewing the lawfulness of administrative/public decisions would become more of a matter of proportionality ex ante (i.e. before the substantive stage where there is a chance that the judicial review claim could be successful). It avoids uncertainty regarding the outcome of the hearing and the risk of a quashing order being made. It encourages judges to exercise more restraint and operate a proper balance of conflicting interests. Kenyan law shows the benefits of extending proportionality beyond parochial limits. There is no reason why this would not work in English law with adaptation.

It would likely undermine Wednesbury irrationality/unreasonableness. However, not completely given that the decision is suspended until and unless it is reviewed by the authority under review with or without directions from the court. It would not frustrate the purpose of the review since the decision could not be implemented until it is reconsidered in light of its potential unlawfulness. It removes any concern regarding unfairness for the claimant given that, as for any court decision, public administrations would be expected to comply with the order and take appropriate action.

The consequence is that the interim judgment – which focuses only on whether the claim is arguable and has some merits – would transform the purpose of the substantive hearing. Instead of purporting to judge the merits of the claim, it could serve to assess whether a potentially unlawful decision has been reviewed, is now lawful, and can be enforced.

Drawing on Nonet and Selznick's discussion of substantive law, it could be one way of enticing administrators to collaborate with courts to ensure policy intentions are well applied, uphold the integrity of a decision, balance out conflicting interests, futureproof decisions, and limit the risk of quashing. ⁹⁶ It encourages judicial cooperation and the need to maintain the status quo by taking ‘account of multiple ends, situational constraints, and practical alternatives. Much the same may be said of the process of fixing moral obligations or of prudent, practical decision making’. ⁹⁷

This would have the effect of transforming the Administrative Court and superior courts into a sort of informal English Conseil d’État, although a neutral arbitrator, that would help each party reach a positive outcome. In turn, failure of the public body to cooperate would expose its decision to quashing.

Besides the considerable impact it would have on court time and resources, this paradigm does not quite work, however, in at least three instances–

- Where the public authority does not take any steps to address the possible unlawfulness of a decision which it believes to be lawful;

Thus, conditional quashing orders appear to be an irresolvable conundrum to solve a false problem. More so since they would introduce unfairness, especially in the first and third instance above, by threatening to quash an actually lawful decision for failure of the decision maker to comply with an order to review a decision that may be legitimate/lawful on its full merits. It reinforces the position of the current system of remedies and interim reliefs which appear to be wholly adequate, especially since many of the aims that conditional quashing orders seek to resolve are readily solved by exiting mechanisms. This exposes conditional quashing orders as a false good idea when one looks closely into them. For these reasons, it is submitted that they should not be introduced.

Conclusion

Attempting to build a theoretical and doctrinal argument to justify the introduction of conditional quashing orders is an inextricable conundrum. On paper, conditional quashing orders have several benefits whether as standard remedies or a court case management power. They replace pragmatism, restraint, cooperation and balance at the centre as the cornerstone of judicial review. They exhort courts to use their judicial function to set conciliatory and mediatory standards of review reconciling the private interest and government activity as two conflicting components of the public interest. They redound to the maintenance of harmony by encouraging judicial flexibility and dialogical mechanisms of dispute resolution to deliver positive policy outcomes safeguarding both individual rights and the public interest.

While these are lofty goals, one must admit that they are confronted with numerous impracticalities, pitfalls, and risks that are as many barriers discouraging their introduction fair and square. These outweigh their benefits and highlight the adequacy of the current system to achieve the same aims, including through the combined use of existing remedies such as mandatory orders, injunctions, ordinary declarations, and suspended and prospective orders. More so since the threat of quashing an arguable and seemingly unlwaful decision that may actually be lawful without considering its full merits introduces unwelcomed unfairness for the decision maker. They must retain administrative discretion to operate effectively.

Even if the permission and substantive stages were combined, conditional quashing orders would have marginal advantages that would not forgo the need for a review hearing to check the progress made by the respondent public authority and determine if the decision should be quashed or can be enforced. This undermines the stated objective of achieving reduced litigation costs and increased time savings.

However, conditional quashing orders have the merit of fuelling wider reflection on and giving food for thought for a complete overhaul of and reframing of judicial review and the management of proceedings. Instead of obsessing with the introduction of conditional quashing orders, the government and government lawyers should reorient their focus on introducing reform giving renewed importance, value, and prominence to cooperation, balance, and harmony. Without amending the current remedial framework, it could consist of introducing changes in the Senior Courts Act, and Civil and Criminal Procedure Rules requiring that before they make a remedial award, judges shall

- Weigh the gravity of a defect affecting a decision at the leave stage when considering the likelihood of a substantially different outcome having been reached had the mistake not been made. It has a necessary impact on the determination of whether there is an arguable case at the permission stage by implication and should play a greater role.

While these proposals may limit judicial discretion and affect the flexibility of the common law – thereby attracting criticisms from judges – it would reinforce the mediatory function of judicial review. It would ensure fairness, flexibility, proportionality and pragmatism where it is fair and convenient in all the circumstances of the case. It would also account for the wider social context in which judicial decisions are made. It would benefit both the individual interest but also the public interest and government activity, thereby encouraging more cooperation between courts, individuals, and government. Borrowing John Rawls’ words, this would help ‘simplify political and social questions so that the resulting balance of justice, made possible by the greater consensus, outweighs what may have been lost by ignoring certain potentially relevant aspects of moral situation’. ¹⁰⁰ The ball, however, is in the court of the lawmaker.

Kane is a lawyer, Seminar Leader and Ordinary Tutor at the University of Edinburgh, and lecturer at Brunel University London. His research interests include EU competition law, commercial law, international law, constitutional law, and legal history. He has a particular interest in contract law, especially regarding formation, interpretation, and breach in a historical and comparative context. His latest publication is a monograph on the role of consent in contract law entitled The Construction, Sources, and Implications of Consensualism in Contract: Lesson From France (Springer, 2023).