Recent developments on declaratory relief in Public Law – UK Constitutional Law Association 

It is often thought trite that remedies in public law are the quintessential area where judges enjoy a significant amount of discretion. In the words of Sir Clive Lewis (now Lewis LJ), “There is no perceivable rule governing which remedy to use [to remedy unlawful acts] and no particular pattern emerges from the case law.”

The focus of this short piece is two recent developments on declaratory relief. The nature of declaratory relief is well-described by Zamir and Woolf in The Declaratory Judgment (4^th ed, 2011) at para 1.02:

“A declaratory judgment is a formal statement by a court pronouncing upon the existence or non-existence of a legal state of affairs. It is to be contrasted with an executory, in other words coercive, judgment which can be enforced by the courts. … A declaratory judgment … pronounces upon a legal relationship but does not contain any order which can be enforced …”

In other words, it is not a coercive form of relief. But it is said that there is a “constitutional convention that the executive will comply with a declaration made by the court even though it does not have coercive effect”: see R (National Council for Civil Liberties) v SSHD and others at para 52.

A failure of public authorities to comply with declarations

Two recent cases have demonstrated a failure by public authorities to comply with, or give effect to, the courts’ declaratory orders. They also demonstrate the courts’ serious view towards these failures.

In Craig v HM Advocate [2022] UKSC 6, following a declaratory order by Lord Malcolm in the Outer House of the Court of Session that the failure of the UK Government to bring into force in Scotland the extradition forum bar provisions was unlawful, the Lord Advocate (acting for the Scottish Government) pressed ahead with extradition proceedings against the appellant, notwithstanding the fact that the UK Government had not yet brought the forum bar provisions into force in Scotland.

In defending this stance, counsel for the Lord Advocate contended that “following the declaratory order, it was for any party who sought to rely on the provisions not commenced to apply for an order for specific performance requiring the Home Secretary to bring them into effect”.

In the Supreme Court’s view, this was akin to the executive (in this case, the Scottish Government) taking the stance that “the [declaratory] order was not regarded as having any practical implications for the Home Secretary unless and until a further, coercive, order was sought and obtained”.

Lord Reed, giving the judgment of the Court, had strong words against this:

“The Government’s compliance with court orders, including declaratory orders, is one of the core principles of our constitution, and is vital to the mutual trust which underpins the relationship between the Government and the courts. The courts’ willingness to forbear from making coercive orders against the Government, and to make declaratory orders instead, reflects that trust. But trust depends on the Government’s compliance with declaratory orders in the absence of coercion.”

This demonstrates a judicial view that, notwithstanding their non-coercive nature, there is a strong expectation that declarations are complied with/given effect to. Underlying this expectation is the principle of inter-institutional comity, as Alison Young has highlighted.

However, less than two weeks after judgment was handed down in Craig, during oral hearing in R (JZ) v Secretary of State for the Home Department and others [2022] EWHC 771 (Admin), it transpired that the SSHD had continued to rely in its casework on a piece of Guidance which had been declared unlawful a few months prior by the Upper Tribunal in SGW v SSHD.

No determination was made as to whether the continued reliance was intentional or by oversight. However, Lieven J noted that it was “contrary to constitutional principle and the rule of law for the Executive to ignore a finding of a court that a policy document is unlawful and to continue to rely on the unlawful section”.

The use of declaratory, in preference to, coercive relief is a paradigmatic example of how the courts are keen to ensure institutional comity with the other branches of government. However, the above failures by public authorities to comply/give effect to declaratory relief, especially in the context of Craig, where counsel’s submissions appeared prima facie to represent a departure from the longstanding approach of the Government to comply with declaratory orders, are stark. The strength of the words employed, in particular by the Supreme Court against such conduct, is especially noteworthy when seen against the Supreme Court’s recent turn in favour of the political constitution.

The serious nature of the two examples above, as well as the courts’ deprecatory words against them, may suggest that a rethink of the courts’ traditional reticence to make coercive orders against public authorities, especially central government departments, is forthcoming.

An issue to consider is whether there is a difference if a declaratory order is used instead of a mandatory order, as opposed to when a declaratory order is used instead of a quashing order. This can be illustrated by contrasting Craig and JZ – specifically, the nature of the unlawful decision at the heart of each case.

In JZ, the continued reliance on policy which has been declared unlawful (a routine occurrence – see here) is itself an unlawful act. If the UT in SGW had decided to employ a coercive order to remedy the unlawfulness, this would have require the employment of a quashing order (to quash the unlawful section of the Guidance).

This can be contrasted to situations like Craig, where the unlawfulness stems from a continuing failure to do something. In Craig, the SSHD could have rectified the unlawfulness by either bringing into force the forum bar in Scotland, or removing the forum bar in the UK’s other jurisdictions until such time as it was deemed that the forum bar could be implemented in Scotland, such that the forum bar can be relied upon in the UK as a whole. The appropriate coercive order to achieve either of these outcomes would instead be the mandatory order.

Arguably, the above distinction – between the scenarios: (1) where a declaratory order is used instead of a quashing order; and (2) where a declaratory order is used instead of a mandatory order – can explain why the failure to comply with a declaration in scenario (1) breaches ‘constitutional principle’, whereas such failure in scenario (2) merely breaches constitutional convention (National Council for Civil Liberties) or a core principle of the constitution based on mutual trust (Craig). In simple terms, the failure to comply with a declaration in scenario (1) is seen as more egregious than that in scenario (2).

The metaphysic of nullity and declarations

The above examples relate to the practical effects of declaratory orders. In contrast, the second issue which has been the subject of recent interest is the declaratory order’s target: the nullity.

Nullity in public law is most frequently described by reference to the work of Christopher Forsyth, who explains that “a decision-maker who decides unlawfully, does an act which he has no power in law to do”. This renders the unlawful act/decision void and of no effect.

If one adopts this view – that all unlawful acts are void ab initio – it can lead to the conclusion that unlawful decisions which are nullities should not be the subject of another important judicial review remedy – the quashing order. On the view presented above, a nullity cannot produce legal effects and thus need not (or cannot) be quashed. A declaration should be the remedy used instead.

This was the view put forward in Wade and Forsyth, Administrative Law 11^th edn (2014). It was most recently endorsed by Chamberlain J in R (D4) v Secretary of State for the Home Department [2021] EWHC 2179 (Admin). In Chamberlain J’s words, “the proper relief is a declaration: where the challenged decision is in law a nullity, there is no need for a quashing order”.

It should be emphasised that this does not seem empirically to be an orthodox view amongst judges. In Baker v Police Appeals Tribunal [2013] EWHC 718 (Admin), Leggatt J (now Lord Leggatt) explained the practical view for why a nullity should be quashed:

“To say that a decision is a nullity does not mean that, where an unlawful decision has been made, an order quashing the decision is unnecessary. People will reasonably act on the assumption that a decision of a tribunal or other public authority is valid unless and until a court quashes the decision or declares it to be null and void”.

This disparity in judicial views on whether quashing orders are appropriate in the context of nullities  has not hitherto been a significant issue in public law, considering that the Government (and other public authorities) have accepted that they can be relied upon to comply with declarations. But the cases of Craig and JZ expounded above brings the judicial approach towards the relationship between declarations and quashing orders into the spotlight. This is because, if the Government (or public authorities generally) cannot be trusted to comply with declaratory orders, the Court might consider it more appropriate to employ coercive orders to remedy unlawful acts (if they ‘can’ indeed do so).

More significantly, however, is how the declaratory/quashing order relationship interacts with clause 1 of the Judicial Review and Courts Bill. Clause 1, as introduced, provides for the use of suspended and prospective-only quashing orders. Clause 1’s policy aim is clearly to encourage the use of suspended and prospective quashing orders. If the view of Chamberlain J in D4 is adopted – that there is “no need” for a quashing order where the challenged decision is a nullity – this clause may become otiose. This is because the courts will simply reach for declaratory relief when faced with a nullity.

It may be retorted that courts already have the jurisdiction to suspend  declarations at common law – see for example,R (National Council for Civil Liberties) v SSHD and others) – such that the courts can similarly be asked to suspend declarations, thus achieving the same practical effect as a suspended quashing order. But, as Lewis Graham shows, the courts have already considered themselves to have the powers proposed in clause 1 of the Judicial Review and Courts Bill. The intended practical effect of clause 1 is to provide a legislative steer for judges to consider more readily making quashing orders suspended and prospective-only, as compared to the other judicial review remedies.

In this author’s view, absent an amendment directing that the flexibility regarding quashing orders will apply regardless of the remedy sought on judicial review, the stance of Chamberlain J, if more widely adopted, may make clause 1 otiose.

This is, of course, subject to how the legislative steer in clause 1 is viewed by the courts. On one view, the legislative endorsement of suspended or prospective-only quashing orders may be sufficient to steer the courts away from their general reticence towards using coercive orders against public authorities. This is especially so in light of the failures by public authorities to comply with declaratory orders expounded above. Of relevance also is the case of Majera v SSHD, where  the  treatment of an arguably unlawful court order as a mere nullity, rather than legally challenging the court order, was roundly rejected by the Supreme Court. The practicalities of the high-profile non-compliance with declaratory orders, combined with the legislative steer in clause 1, may be sufficient to draw the courts away from Chamberlain J’s view in D4.

Conclusion

Declaratory relief is an important tool in the range of judicial review remedies. The two recent developments highlighted above show how important they are in remedying unlawful decisions, with ramifications going beyond their use at time of judgment.

In the first development, the use of declaratory relief reflects the inter-institutional trust and respect at the heart of the UK’s political constitution – which, as seen from the tenor in the courts’ words – should be treated with care. Further, the option for which declaratory relief is used in preference to also arguably has implications for how courts view the nature of the relief eventually granted.

The second development shows, unsurprisingly, that the use of declarations must be seen against the backdrop of the full range of judicial review remedies, with implications affecting the legislative agenda seeking to reform the UK constitution.

It is important that the “intellectual blindspot” generated by the obfuscatory nature of their use, as Joanna Bell describes, is overcome to engender a more well-rounded review of its operation.

Gabriel Tan is a Public Law caseworker at Wilson Solicitors LLP and author of the Administrative Court Blog (@finishedloading)

(Suggested citation: G. Tan, ‘Recent developments on declaratory relief in public law’, U.K. Const. L. Blog (6th April 2022) (available at https://ukconstitutionallaw.org/))