Suspended quashing orders and rolling judicial review as a means of monitoring compliance

The recent judgment of Chamberlain J in R (ECPAT UK) v Kent CC, SSHD [2023] EWHC 2199 (Admin) ('the ECPAT UK relief judgment') provides a helpful example of the use of the new power under section 29A(1)(a) Senior Courts Act 1981 to suspend quashing orders, and the circumstances under which “rolling” judicial review may be appropriate to monitor compliance with a court order.

Suspended quashing orders

Section 29A of the Senior Courts Act 1981 was inserted by the Judicial Review and Courts Act 2022. It provides at s.29A(1)(a) for suspended quashing orders, that is for a quashing order to include provision "for the quashing not to take effect until a date specified in the order". The effect is that "the impugned act is... upheld until the quashing takes effect" (s.29A(3)) and for the period it is upheld "it is to be treated for all purposes as if its validity and force were, and always had been, unimpaired by the relevant defect" (s.29A(5)). Once the quashing order takes effect, the impugned act is treated as void from the beginning (s.29A(6)). A suspended quashing order may be subject to conditions (s.29A(2)).

Section 29A(8) sets out considerations the court "must" have regard to in deciding whether to suspend a quashing order:

• the nature and circumstances of the relevant defect
• any detriment to good administration that would result from exercising or failing to exercise the power
• the interests or expectations of persons who would benefit from the quashing of the impugned act
• the interests or expectations of persons who have relied on the impugned act
• so far as appears to the court to be relevant, any action taken or proposed to be taken, or undertaking given, by a person with responsibility in connection with the impugned act
• any other matter that appears to the court to be relevant.

As observed by Chamberlain J in the ECPAT UK relief judgment at para 4: "Until the enactment of the Judicial Review and Courts Act 2022... it was unorthodox, and arguably impermissible, for a court to grant an order permitting a public body to continue, even for a short time, to do something which it had held to be unlawful".

At para 6, he describes s.29A as providing "a remedial flexibility that was previously unavailable. [It] enable[s] the court to deal with situations where one or more public authorities are engaged in conduct that is unlawful, but real harm would be caused if that conduct had to stop immediately. The court can set a date by which the unlawful conduct must be brought to an end while providing, subject to conditions under s.29A(2), that the conduct may continue in the meantime."

Suspended quashing orders in action - the ECPAT UK case

Chamberlain J's judgment on relief comes in the context of ongoing litigation concerning the powers and duties of Kent County Council ('Kent CC') and the Home Secretary ('the HS') in relation to unaccompanied asylum seeking children ('UAS children').¹

In a prior judgment handed down on 27 July 2023, Chamberlain J determined a number of preliminary issues common to three linked judicial review claims: see R (ECPAT UK) v Kent CC, SSHD [2023] EWHC 1953 (Admin) ('the ECPAT UK preliminary issues judgment').

In short, the claims concern the arrangements made by Kent CC and the HS for accommodating and looking after UAS children that arrive in the UK.

The primary duty for accommodating and looking after UAS children rests on local authorities under the Children Act 1989 ('CA 1989'). Because almost all UAS children arriving in the UK arrive in Kent, Kent CC has found itself responsible for looking after large numbers of UAS children in the first instance. They struggle to do so and have admitted wholescale breaches of their duties to UAS children under the CA 1989.

The National Transfer Scheme ('NTS'), operated in accordance with the NTS Protocol, provides for the transfer of responsibility for UAS children from one local authority to another. The NTS is made by the HS under section 72 of the Immigration Act 2016.

In addition to the NTS, the HS and Kent CC agreed the Kent Protocol. This provides that Kent CC will accept a capped number of UAS children into their care, pending their transfer to local authorities under the NTS. In practice, when the capped number of UAS children that Kent CC will accept is exceeded, children are accommodated in hotels commissioned by the HS, which function outside of the care system.

The Claimants in the three linked claims challenged the legality of these arrangements on multiple grounds. Chamberlain J determined a number of preliminary issues, but for the purposes of discussing relief, the most important are as follows:

(a) The cap in the Kent Protocol on the number of UAS children that Kent CC will accept is a breach of its duties under CA 1989. Section 20 CA 1989 imposes an absolute and non-derogable duty on Kent CC to accommodate and look after UAS children when they are notified of their arrival. The Kent Protocol is unlawful, because it would induce a person who followed it to breach their legal duty by refusing to accommodate a child owed duties under CA 1989, if doing so would cause the cap to be exceeded.

(b) The NTS Protocol is unlawful in part. It provides for the referral of children who are not in the care of Kent CC to other local authorities. In practice, the arrangements for these transfers are made between the HS and the receiving local authority, and Kent CC plays no role. This is contrary to sections 69-73 of the Immigration Act 2016, which provide for the transfer of responsibility for a relevant child between authorities, but which require the transferring authority to play an active role in the transfer.

(c) Although the HS has a power (either at common law or under section 3(5) CA 1989) to accommodate children in hotels, this can only be used for very short periods of time in true emergency situations, where stringent efforts are being made to enable the local authority to promptly resume the discharge of its duties under the CA 1989. The HS's use of hotels has become systematic and routine, functioning in practice as a substitute for local authority care. This is unlawful.

As observed by Chamberlain J in the ECPAT UK relief judgment at para 7, the effect of his judgment on the preliminary issues is that "the unlawful practice must stop. But all parties agreed that it would counterproductive if it had to stop immediately, because that would mean that responsibility for children currently accommodated in hotels (and not in the care of the entry local authority) could not be transferred to other local authorities."

It was in this context that Chamberlain J ordered the following relief:

• An order quashing the NTS Protocol insofar as it permits the HS to make arrangements for the transfer of responsibility for UAS children without the participation of the entry authority, suspended until a fixed future date: para 7.
• An order quashing the Kent Protocol suspended until a fixed future date, which "made clear that the agreement contained in that protocol, including the funding arrangements, would have to be renegotiated to enable Kent CC to discharge its statutory duty to all UAS children, but also recognised that the renegotiation would take some time": para 9.
• Both orders were suspended for three weeks, on the basis that a longer suspension "would fail to meet the urgency of the situation." Further, "during the period while the orders were suspended there would be stringent conditions to ensure that everything was being done that could be done to minimise the extent of the continued unlawful conduct": para 10.

The order (including the conditions imposed during the period of suspension) can be viewed below.

Rolling judicial review as a means to monitor compliance with a suspended quashing order

Chamberlain J observed that the "normal position in judicial review is that the court determines the issues before it and then decides what relief to give on one occasion": para 11 (emphasis added). "Even where the court has found that a public authority has acted unlawfully, the public authority can in general be trusted to comply with the judgment" such that further judicial intervention is unnecessary: para 12.

Nevertheless, Chamberlain J concluded that there are "rare" occasions when a different approach is justified: "Where the power in s.29A(1)(a) to suspend a quashing order is exercised, it may be necessary to hold a further hearing to check that the conditions for suspension have been complied with and to determine whether the suspension should be extended": para 14 (emphasis added).

The features of the present case which convinced Chamberlain J that a further hearing was justified were (see para 16, drawing parallels with R (Client Earth) v SSEFRA (No 3) [2018] EWHC 398 (Admin)):

• The continuing failure of Kent CC to comply with its legal obligations under CA 1989, dating back to September 2020.
• The history of litigation, which showed an impasse had been reached where Kent CC and the HS blame each other for the unlawful state of affairs. (Thus suggesting that without further oversight, Kent CC and the HS might not sort things out between themselves).
• The ongoing very serious consequences of the breach of duty on identifiable children, who are not looked after by any local authority and should be.
• That the litigation had been responsibly and proportionately conducted by expert claimants, who had assisted the court by limiting themselves to moderate and properly arguable submissions. (Thus alleviating concerns that court time might be misused on unmeritorious issues if a claimant was not required to issue a new claim and obtain permission before returning to court).

Accordingly, Chamberlain J fixed a further hearing to consider whether any further relief was required. He also required Kent CC and the HS to file evidence of all steps taken to ensure that each UAS child arriving in Kent was accommodated and looked after by Kent CC under the CA 1989, and that the conditions of the suspended orders had been complied with: para 17.²

At that further hearing Chamberlain J determined that the order quashing the Kent Protocol would come into effect on the date originally ordered, but (with the agreement of all parties) there should be a short extension to the suspension of the order quashing the NTS Protocol insofar as it permits the HS to arrange for the transfer of UAS children to another local authority: paras 47-8.

Interestingly, he determined that there was "a continuing remedial role for the court" such that a further hearing would be scheduled. This was because "although the court's judgment appears to have prompted a great deal of useful work by Kent CC and the HS, considerable work remains to be done" and there appeared to be further disputes arising between Kent CC and the HS. Accordingly, "[i]f the court does not retain some further role, there is a serious danger that the parties will revert to positions of each blaming the other and that these positions will lead, again, to an impasse": para 53.

Chamberlain J also determined that mandatory orders imposing procedural and substantive obligations on the Defendants should be made, on the basis that this would provide a useful framework for Kent CC and the HS to work together: para 55.

The next hearing is listed for 15 September 2023, so watch this space to see how the court navigates its "continuing remedial role".

Conclusion

Although some of the underlying issues in the ECPAT UK litigation may be overtaken if/when various provisions of the Illegal Migration Act 2023 come into force (see in particular sections 16-21), it will remain a useful touchstone when considering the exercise of the new power under s.29A Senior Courts Act 1981 to suspend quashing orders.

The ECPAT UK relief judgment also heralds the possibility of the courts being more willing to take an active role in monitoring compliance with court orders in complex cases, which is to be welcomed. This is likely to remain exceptional, and remains a far cry from the supervisory jurisdiction of the Constitutional Court of South Africa (for example). Nevertheless, linking suspended quashing orders with ongoing judicial oversight is another potentially useful tool in the English public-lawyer's toolbox of which we should all be aware.

Martin Westgate KC, Shu Shin Luh and Antonia Benfield of Doughty Street Chambers, instructed by Freshfields Bruckhaus Deringer LLP, represent ECPAT UK (Every Child Protected Against Trafficking). The author of this blog is not involved in the litigation.

1. I note Chamberlain J's insistence at para 2 of the ECPAT UK preliminary issues judgment that he would refer to 'UAS children' throughout his judgment, not 'UASC', on the basis that "[a]cronyms can be helpful, but they can also divert the reader's attention from something important."

2. See paras 18-24 of the ECPAT UK relief judgment for some observations on late filing and service of evidence, and potential consequences of inadmissibility and costs sanctions.