Judicial review and secondary legislation: What power does the court have to fix broken legislation?

In the fourth post in our Public Law team’s blog series, Emily Carter examines the powers of the court to review the hundreds of pieces of secondary legislation being swiftly created in preparation for Brexit.

Why do we need the court’s oversight?

Where our departure from the EU leaves a hole in the legislative landscape, whether due to the necessary re-arrangement of our domestic affairs or the identification of legislative ‘deficiencies,’ new laws will need to be created. Law makers are working around the clock in preparation for Exit Day producing secondary legislation in the form of regulations, orders and other statutory instructions. By definition, secondary legislation is more swiftly created and less administratively burdensome than primary legislation [see our blog on “What is secondary legislation and why do we have it?”].

The Government estimates 700 new pieces of legislation will be made to accommodate our exit from the EU, the vast majority of which will be secondary legislation. Given the pressure of the timetable and the inherent lack of scrutiny when creating such legislation, there is little hope that a comprehensive, coherent and cohesive body of new legislation will emerge. Indeed, on 10 December, the Hansard Society reported that the Government had laid just one third of the statutory instruments which it estimates will be needed.

Secondary legislation is often dense and technical – and critically important to the day to day operations of business and other organisations.  Inevitably, some of those affected will need to seek the swift oversight of the courts in reviewing unfair, unfit or unlawful legislation.

Judicial review: The court’s powers to review secondary legislation

The court does not have the power to strike down primary legislation given this has been subject to the full legislative process of Parliament, with the exception of its limited powers to either disapply primary legislation which is incompatible with the European Convention on Human Rights or make a declaration of incompatibility.

The position is very different with respect to secondary legislation, which is created by an administrative process (subject in certain cases to the final approval or veto of Parliament). Secondary legislation may be subject to judicial review by the High Court even if it is made by the affirmative or negative resolution procedure of Parliament, or the controversial “Henry VIII” power introduced by section 8 of the European Union Withdrawal Act 2018 to remedy deficiencies within the EU law which will adopted within our domestic law upon Brexit [See our blog “Divorced, beheaded, scrutinised? SIs and Henry VIII powers under review”]. However, the court’s consideration will be affected by the level of Parliamentary scrutiny involved in the legislative method, with the court being more reluctant to intervene in legislation which was actively approved by Parliament [See our blog on “How does secondary legislation come into force?”].

The usual range of procedural and substantive grounds is available to claimants seeking judicial review of secondary legislation, including:

• It was not made within the scope of the power of the enabling primary legislation;
• When it was made, irrelevant considerations were taken into account or relevant considerations were not taken into account;
• The legislation is irrational;
• It was not made in accordance with the correct procedure or is otherwise procedurally unfair, including any consultation undertaken prior to introduction of the legislation; or
• It was made in breach of human rights.

If one or more grounds are established, the High Court may order that the whole or part of the relevant piece of legislation is quashed, leaving the Government to reconsider and remake the legislation with reference to the lessons learnt from the High Court proceedings. However, any remedy within judicial review is discretionary. For example, the courts will carefully consider the nature and extent of the impact of legislation held to be unlawful because of inadequate prior consultation before making a quashing order.

Some examples of successful judicial review of secondary legislation

These examples demonstrate the willingness of the court to intervene in inadequate processes and decisions relating to secondary legislation. The High Court quashed regulations:

• concerning the calculation of legal aid held after finding critical information had been omitted from the consultation process and the expert analysis underpinning the regulations was determined to be flawed: R (on the application of Law Society) v Lord Chancellor [2018] EWHC 2094;

• in relation to charging overseas visitors for health services on the basis that the Secretary of State had failed to undertake a proper assessment in accordance with the Public Sector Equality duty under the Equality Act 2010: R (on the application of Cushnie) v Secretary of State for Health [2014] EWHC 3626 (Admin);
   
• with respect to the eligibility threshold for higher rates of teachers’ pay given the Secretary of State had failed to follow any of the statutory methods available to him to amend the teachers’ contracts of employments: R v Secretary of State for Education and Employment Ex p. National Union of Teachers [2000] 7 WLUK 424

Seeking judicial review of secondary legislation

Any organisation which has been adversely affected by secondary legislation seeking the oversight of the court should act swiftly. Applications for judicial review must be made promptly and, in any event, within three months of the relevant decision. The requirement for “promptness” may be interpreted as requiring particularly quick action where urgent legislation has been implemented and is already being widely relied upon. Although it would be possible to apply for an interim injunction suspending the effect of the legislation, the court has made it plain that such an application would only be granted in truly exceptional circumstances. Therefore, any business or organisation which discovers that the arrangements for legislative transition post-Brexit are flawed should swiftly take steps to determine whether these can be reviewed by the court and remedied.

Further information

Should you have any questions about the issues covered in this blog, please contact Emily Carter or a member of our Public Law team.

Lawyers from Kingsley Napley are regularly blogging about a range of legal issues, including Public Law matters and the impact of Brexit. See our Public Law Blog for the latest commentary.

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Please see previous blogs in the series:

• How does secondary legislation come into force? The enactment of secondary legislation and the impact on subsequent litigation
• What is secondary legislation and why do we have it?
• Kingsley Napley considers statutory instruments and Brexit