Under Chris Grayling’s stewardship of the Ministry of Justice, the view took hold—ample evidence to the contrary notwithstanding—that too many claims for judicial review were being initiated, and that judicial review was being used abusively for ‘political’ purposes. One of the ill-conceived ideas that grew out of this unfounded notion was that courts should be required to withhold relief in judicial-review proceedings in certain circumstances, so as to address the perceived problem of ‘time and money [being] wasted in dealing with unmeritorious cases which may be brought simply to generate publicity or to delay implementation of a decision that was properly made’.
The new statutory provisions
New provisions were thus inserted into section 31 of the Senior Courts Act 1981 (‘SCA’) by section 84 of the Criminal Justice and Courts Act 2015.
Section 31(2A)–(2C) of the SCA now provides as follows:
(2A) The High Court—
(a) must refuse to grant relief on an application for judicial review, and
(b) may not make an award under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.
(2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest.
(2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.
Section 31(3C)–(3F) makes similar provision in respect of the withholding of permission to seek judicial review in the first place.
These provisions thus require courts to deny relief or permission if it is ‘highly likely’ that the unlawful administrative action complained of made no substantial difference to the outcome, from the claimant’s perspective, of the decision-making process. So, for example, relief or permission must be denied if it is highly likely that a procedural flaw—such as failing to afford the claimant a sufficiently fair hearing—did not affect the outcome. This, in turn, appears to require courts to accede to the sort of ‘makes no difference’ arguments that they have tended to resist at common law, either on the ground that respect for the dignity demands that individuals be treated fairly even if fair treatment makes no difference to the outcome, or on the instrumental ground that until a fair process has been supplied it is unduly risky to attempt to predict whether it would have made a difference to the outcome.
Against that background, it would be surprising if the courts were to interpret the new provisions inserted into the SCA in a way that would dramatically expand the circumstances in which ‘makes no difference’ arguments would succeed. A very helpful recent paper jointly published by the Bingham Centre for the Rule of Law, the Public Law Project and Justice addresses this issue (among others). The paper argues that ‘only the clearest of evidence should satisfy the “highly likely” test’, and that ‘[w]here a case does not involve the “mischief” that the statutory provision was designed to remedy the case should be considered as exceptional’. On this view, relatively few cases would trigger the section 31(2A) obligation to refuse relief, while many cases that prima facie attracted that obligation would in fact escape the strictures of section 31(2A) by virtue of satisfying the exceptionality criterion in section 31(2B). An even narrower approach might be anticipated at the permission stage in respect of sections 31(3C)–(3F) on account of the even greater risks—when procedural fairness is viewed in instrumental terms—of second-guessing at a preliminary point in the proceedings whether the outcome would have been different had a lawful process been adhered to.
The Hawke case
R (Hawke) v Secretary of State for Justice  EWHC 3599 (Admin) is one of the first cases to consider the effect of the new statutory provisions. The facts are helpfully summarised in the first paragraph of Holman J’s judgment:
In this case there are two claimants, a convicted prisoner, who is the second claimant; and his wife, who is the first claimant. I will call them respectively ‘the prisoner’ and ‘his/the wife’. The wife is seriously disabled and cannot realistically and at proportionate cost visit the prisoner where he is currently detained. The claimants contend that the Secretary of State for Justice has acted, and is continuing to act, unlawfully by not detaining the prisoner in a prison closer to her home.
The claimants’ challenge was brought on several grounds. One concerned the duty imposed by the Equality Act 2010 to make ‘reasonable adjustments’ in the light of the prisoner’s wife’s disability. This, held Holman J, the Secretary of State had done by permitting the prisoner’s wife to use the ‘accumulated visits’ scheme. Holman J explained that:
Accumulated Visits are in effect a series of visits, to which the prisoner would otherwise have been entitled over a longer period, bunched up in a shorter period. They are expressly designed for, amongst others, those whose families are located some distance from the establishment or abroad. Accumulated Visits may be applied for every six months.
However, the claimants also argued that the Secretary of State was in breach of the public-sector equality duty (‘PSED’) imposed by section 149 of the 2010 Act. Among other things, this required the Secretary of State to ‘have due regard to the need to reduce discrimination’ and ‘advance equality of opportunity’, including by ‘tak[ing] account of disabled person’s disabilities’.
Holman J said:
Frankly, there is negligible, if any, evidence in this case to demonstrate that when formulating their relevant policies, or when making decisions in relation to this particular prisoner and visits by his wife, the Secretary of State for Justice, or any of his officials or front line staff, had any real regard to that express statutory duty.
Holman J went on to note that a Prison Instruction issued by the Secretary of State in connection with the accumulated-visits scheme ‘makes no reference to, and evidences no discrete or specific consideration of, the position of those whose families may include a disabled person’ and concluded:
I am satisfied in this case that there is no breach in this case of the objective duty under section 20 of the Equality Act to make reasonable adjustments. By making provision for Accumulated Visits, the Secretary of State for Justice has done all that he reasonably and objectively can do. But I am not satisfied … that the Secretary of State for Justice, or his officials or staff, have given the positive due regard which section 149 requires. If I were to brush over this … I would be failing in my own duty to mark the failure of a public authority to give effect to section 149 …
Against this background, Holman J would have issued a declaration had it not been for the new provisions in the SCA. However, he concluded that those provisions prevented him from making a declaration because even if the Secretary of State had, in formulating the accumulated-visits policy, specifically taken account of disabled relatives’ needs, was highly unlikely that his policy would have been more favourable than the policy that had actually been applied. In other words, the way in which the accumulated-visits policy applied in the circumstances of this case made sufficient reasonable adjustments for disabled relatives, and it would have made no difference to the outcome if that position had been arrived at in the light of—rather than without any reference to—the PSED.
This gives rise to a significant question about the relationship between the two conclusions reached by Holman J—and, by extension, between the two conclusions that will be reached in any case like this. On the one hand, Holman J held that there had been a breach of the PSED. On the other hand, he held that the new SCA provisions precluded the granting of ‘relief’. He went on to decide that the prohibition in the new provisions upon the granting of ‘relief’ referred back to ‘relief’ as defined in section 31(1). It provides that on an application for judicial review, the High Court can grant ‘relief’ in the form of quashing, mandatory and prohibiting orders, declarations, and injunctions. In the light of this, Holman J concluded that while he could not grant a ‘declaration’, he could say something that would amount to a ‘declaratory judgment’:
I … conclude this judgment by repeating what I said … above: that I am not satisfied on the facts and in the circumstances of this case that the Secretary of State for Justice or his officials of staff have given the positive due regard which section 149 of the Equality Act 2010 requires, and on the facts and in the circumstances of this case, there has been a failure by the Secretary of State for Justice to discharge his duties under that section. I intend those words to represent ‘a declaratory judgment’ …
What, then, is the difference between a ‘declaration’ and a ‘declaratory judgment’? Leaving to one side the (important) question of costs, as a matter of substantive law the answer to the question must be ‘none’. A declaration is not a binding remedy that imposes any obligation on any party or renders the position in law different from the position that would otherwise have applied. A ‘declaration’ is merely an authoritative judicial statement as to the legal position—as is a ‘declaratory judgment’ in the sense of a judgment that sets out the legal position without issuing a ‘declaration’ as such.
But in fact the more pressing question is: what is the difference between a quashing order and a declaratory judgment? Take, for instance, a case in which a fair hearing (or some legally required element of a fair hearing) was not supplied, and in which the court was satisfied that the section 31(2A) prohibition on relief applied but that the section 31(2B) exceptionality criterion was not met. In such a case, the court could presumably make a ‘declaratory judgment’, indicating that the impugned decision was unlawful (on account of a breach of natural justice) but that ‘relief’ in the form of a quashing order could not be issued because of the new SCA provisions. Indeed, it is hard to see how any court that holds the SCA provisions to preclude relief could avoid issuing a ‘declaratory judgment’. Before a court can logically consider whether relief has to be withheld under the SCA (or should be withheld on a discretionary basis), it has to decide whether, in the first place, there would be grounds on which to issue relief. In this way, the court has to decide whether the decision is unlawful: and, if the court decides that the decision is unlawful, the court implicitly declares its unlawfulness, whether or not it issues a declaration, a quashing order or any other remedy.
What, then, in the circumstances sketched above, would be the consequence of withholding a quashing order? In HM Treasury v Ahmed (No 2)  UKSC 5, the Government asked the Supreme Court to ‘suspend’ a quashing order that the Court was minded to issue. In declining to accede to that request, Lord Phillips (with whom Lord Rodger, Lord Walker, Lady Hale, Lord Brown and Lord Mance agreed) said that
the court’s [quashing] order, whenever it is made, will not alter the position in law. It will declare what that position is. It is true that it will also quash the [impugned secondary legislation], but these are provisions that are ultra vires and of no effect in law. The object of quashing them is to make it quite plain that this is the case.
In other words, quashing orders do not ‘quash’ unlawful administrative acts in the sense of rendering them unlawful. Unlawful administrative acts are—and always have been—unlawful, because, being ultra vires, they have never had a legal foundation. It follows, as Lord Phillips recognised, that quashing orders merely declare what the legal position is and has always been: that the unlawful administrative act is and has always been unlawful.
It is important, in the light of Ahmed (No 2), to recognise that the new SCA provisions do not affect the underlying lawfulness of the impugned administrative action. They are directed to the question whether relief can be granted in respect of unlawful administrative action, not to the question whether the impugned administrative action is in the first place lawful or unlawful. It follows that a ‘declaratory judgment’ is not, as the language might imply, the polar opposite of a judgment that culminates in the issuing of a quashing order. This is not to suggest that the new SCA provisions will make no difference. In some circumstances, it will be practically important for the claimant to obtain a quashing order: for instance, in the absence of such an order, the defendant public authority and/or third parties might decline to acknowledge unlawfulness of the administrative act in question, and might proceed on the basis that the unquashed act legally exists.
But in other circumstances, a declaratory judgment will be all that the claimant needs. For instance, once the High Court has declared an administrative act to be ultra vires, any private- or criminal-law proceedings in which the administrative act is relevant would have to acknowledge the unlawfulness of the act, treating it as void. In this way, the new SCA provisions suffer from the same conceptual myopia as those who advocate the use of remedial discretion as means of managing the consequences of the voidness of unlawful administrative action, by failing fully to acknowledge that the withholding of ‘relief’ in judicial-review proceedings does not always have the decisive consequences that might be supposed.