Policy background Judicial Review Remedies
Currently, when considering a judicial review, the High Court has various remedies available to it. These are:
An order quashing the decision in question (quashing order, previously certiorari);
An order restraining the body under review from acting beyond its powers (prohibiting order, previously prohibition); and
An order requiring the body under review to carry out its legal duties (mandatory order, previously mandamus).
The High Court can also make declarations, issue injunctions, and in very rare cases grant damages.
	The IRAL Panel recommended that the Government create a power for the courts to suspend the effects of quashing orders and suggested the Government should legislate to the effect that "on an application for Judicial Review the High Court may suspend any quashing order that it makes, and provide that the order will not take effect if certain conditions specified by the High Court are satisfied within a certain time period".
	The Panel’s reasoning was that such a remedy would increase the flexibility of the set of remedies available and increase the court’s flexibility in deciding which remedy could be appropriate. The court would thus be better able to tailor its remedies to the facts of the case. The need for flexibility stems from the immediate effect of the current set of remedies – that they only provide for a decision being invalid and quashed immediately and retrospectively, or for no remedy to be given, or a declaration of unlawfulness. This legislation does not provide for a specific mechanism for the second part of the IRAL’s recommendation – that a court could set conditions, which if fulfilled would prevent the decision being quashed. It was considered that such a power could create practical complexities in its use and the set of cases where this remedy appeared feasible is extremely small.
	The Panel saw two general areas where a suspended quashing order may be useful.
	First, in circumstances where a case raised significant constitutional questions, or where quashing a decision would pose significant risks to national security or the public interest, a suspended quashing order could be used to allow Parliament to clarify or amend the position.
	Secondly in circumstances where a suspended quashing order would allow the defect to be corrected. For example, in R (Hurley and Moore) v Secretary of State for Business, Innovation & Skills [2012] EWHC 201 (Admin), the High Court found that the Secretary of State had, in issuing Regulations allowing universities to charge students up to £9,000 in fees, "failed fully to carry out his public sector equality duties" to assess properly whether the proposed Regulations would prove unacceptably discriminatory on grounds of race, sex or disability. Despite this, the High Court declined to quash the Regulations because of the inconvenience that it would cause. Instead, the Court issued a declaration that the Secretary of State had acted unlawfully. As a remedy, a suspended quashing order may have provided more flexibility. Such an order could have indicated that that the Regulations would be quashed within a couple of months of the Court’s judgment but would give the Secretary of State time to prepare for the effect of any quashing or to consider the "public sector equality duties" and whether the Regulations needed to be revised.
	It is the Government’s view that the argument for increased remedial flexibility extends to providing the courts with a further power to modify the retrospective effects of a quashing order. The Government’s public consultation proposed legislating for "prospective quashing orders" where the courts could declare an action or decision unlawful onwards from a particular point. Consultees had mixed views on this proposal and a number argued that they struggled to conceive of many cases where such a remedy would be appropriate. The Government acknowledges that these circumstances may arise relatively rarely, however, it believes that the courts will apply their discretion appropriately and as an additional tool for them to use in deciding on remedies the proposal does have merit. Therefore, the Act provides the courts with an additional power to remove or limit the retrospective effect of any quashing order it makes.
	With regard to the new remedial powers that the Government is providing for in this Act it considers it appropriate to provide the court with a non-exhaustive list of factors that it should consider when deciding whether to suspend or alter the retrospective effects in that specific case. This should aid consistency as the courts consider when and how to apply the new remedies.
	The Bill originally contained a general presumption to use these new remedial powers in circumstances where it appears to the court that they afford adequate redress unless there is a good reason not to do so. This was removed during the passage of the Bill and is not part of the Act.
	Since Anisminic v FCC [1969] 2 AC 147, [1969] 2 WLR 163 and subsequent cases dealing with the question as to whether any error of law constitutes a jurisdictional error thus invalidating the act in question, there has been arguable ambiguity as to what kind of errors make a decision invalid and which do not. The case Ahmed v HM Treasury (No. 2) [2010] 2 AC 534 exposed one of the ramifications of invalidity on the court’s remedial discretion. In Ahmed (No. 2) it was held that it would be pointless (and misleading) to suspend the coming into force of a quashing order because it would make no difference to the underlying legal position: it was not the quashing order that deprived the relevant orders of effect, but the fact that they were ultra vires. The sections, while empowering the court to modify a quashing order, also provide for the effects of its doing so in the context of the doctrine of nullity. This means that the underlying invalidity of the act in question may be disregarded and the act treated as valid until the quashing order comes into effect (in regard to suspended orders), or its past use may be permanently treated as if it were valid. So, regardless of a particular error being deemed as invalidating the act the court may still suspend or alter the effect of a quashing order, which in turn would allow the act to be treated as valid, as if the error invalidating the act had not occurred.