Recommendation 1

Remedial flexibility allows the courts to provide an appropriate remedy in each case. Providing the courts with the ability to suspend a quashing order is a reasonable addition to the range of remedies available that, if used appropriately, could reduce administrative difficulties, and even benefit claimants. However, a presumption in favour of quashing orders with suspended or prospective-only effects is unnecessary and undermines the remedial flexibility that the former Lord Chancellor claimed was the ultimate goal of the Bill at the time of its introduction. As the Explanatory Notes on the Bill state: “the diverse circumstances of possible cases make it difficult to assume that any one remedy or combination of remedies would be most appropriate in all circumstances.” While generally a judge would remain free to choose whether to make a suspended and/or prospective-only quashing order, the Bill does nevertheless make them compulsory in certain circumstances. In this way, Clause 1 appears to be an attempt to weight the scales in favour of the defendant public authority over the claimant.