The constitutional limits of mandatory orders – UK Constitutional Law Association

The Supreme Court’s recent judgment in R (on the application of Imam) (Respondent) v London Borough of Croydon (Appellant) [2023] UKSC 45 (“Imam”) has far wider application beyond the immediate focus of that case on whether a local housing authority’s limited resources should affect the remedy to be granted by a court when the authority is in breach of its duty under section 193(2) of the Housing Act 1996. The judgment of Lord Sales (with whom the four other Justices agreed) sets out several important principles concerning the constitutional role of the courts in judicial review proceedings, particularly in relation to the circumstances in which it is constitutionally appropriate for a court to grant a mandatory order to compel a public body to take particular action. Whilst the Supreme Court may have dismissed the appeal brought by the local authority, it is important not to overlook the fact that the Court declined to make such an order despite Ms Imam’s forceful submissions to the contrary.  

The constitutional role of the judiciary

The granting of relief in judicial review proceedings is at the coalface of the separation of powers between the judiciary, legislature and executive. This is equally true for the United Kingdom’s unwritten constitution as it is for the written constitutions that exist across the Commonwealth and in the United States (amongst others). And it is particularly the case for the granting of mandatory orders that compel the executive to take certain action. 

Modern judicial review is, at its absolute core, concerned with the control of executive power. It involves the courts deciding whether a public body has acted outside the powers, functions or duties (or failed to exercise the powers, functions and duties) vested in it by Parliament, or in some rare cases, in respect of the exercise of prerogative powers. The courts will ordinarily grant whatever remedies it considers are appropriate to ensure that the power, function or duty in question is properly exercised: to quash the decision, to declare that there has been an error of law in the making of the decision, to prohibit or injunct to prevent excesses of power, or to compel the lawful performance of the power, function or duty (see section 31(1) of the Senior Courts Act 1981).  

There is accordingly a spectrum of options available to the courts, each of which varies in the intensity of its effect on the future decision-making of the particular public body. However, even quashing orders, which are at the lower end of the spectrum, can raise questions about democratic accountability and give rise to (at least) the perception that the judiciary occasionally crosses the line by stepping into the shoes of government – Miller No. 2 being one recent example that vividly illustrates how the granting of relief can generate significant political controversy in this regard.  

It is not only the separation of powers between the judiciary and the executive that is brought into issue in judicial review proceedings. Many judicial review cases are primarily or even solely concerned with matters of statutory interpretation – the process by which the courts seek to construe the meaning of the words laid down by Parliament. It is properly the function of the judiciary to ultimately determine what a power, function or duty requires. What the courts cannot do once this question has been answered is to modify or moderate the substance of that power, function or duty in the course of deciding whether to grant or withhold relief (Imam, at [41]). That would clearly trespass on Parliament’s constitutional function.  

The discretionary nature of relief 

The Court’s constitutional role in upholding the law means that in most cases it should intervene when there has been an unlawful exercise of power. That is, as Lord Sales described it, the “ordinary position” (at [44]).  However, it has always been the case that the granting of relief is discretionary and there are competing public policy reasons for refusing to do so. Historically, these have included the reasons commonly found in equity such as delay in commencing the action, coming to the court with ‘unclean hands’, prejudice to third parties or utility (the latter of which is now codified in section 31(2A) of the Senior Courts Act 1981). 

This is not a reflection of the judiciary disobeying the will of Parliament in relation to the intended validity of such powers or decisions, but rather recognition that there exist competing public policy reasons. In constitutional terms, Parliament is alive to this reality when it legislates (Imam, [42]). In addition, whilst it is correct that remedies in judicial review proceedings are inherently different to private law remedies (Imam, [48]), one of the consequences of an adversarial system is that the nature of the exercise of judicial power necessitates the court retaining a discretion in relation to the grant of relief to ensure that justice is done between the parties that appear before it. 

Whilst a variety of competing public policy considerations may exist, there have been many judicial reminders that the refusal of relief is not a decision that should be made lightly. Ultimately, the refusal of relief means that an exercise of power remains unperformed and an error of law uncorrected.

Why mandatory orders require special consideration 

The granting of any judicial remedy involves an intervention by the courts in the exercise of statutory powers. It is more than just a ‘conversation’ between the two branches; judicial intervention has the potential to mould the future exercise of the power in question. The extent to which this occurs will depend on the nature of the remedy granted. As Lord Sales aptly put it (at [45], underline added):

Different remedies have different degrees of impact on the capacity of a public authority to carry out its functions. A quashing order is the usual remedy in public law, which obliges the authority to re-take a decision in a lawful way. Such an order allows the authority to exercise its own judgment in re-taking a decision, having regard to all relevant interests affected thereby. On the other hand, a mandatory order takes a matter out of the hands of the authority and, to that extent, makes the court the primary actor. 

In constitutional terms and effect, mandatory orders are therefore very different to quashing orders – such orders do not simply require a public body to retake a decision as it considers appropriate (within the law), but instead to perform a particular action mandated by the courts. As Lord Sales quite properly warned (at [45]), the issuing of such orders is not confined to the issue of how to uphold the law but raises wider questions about the separation of powers. The result of this is that the courts must properly consider the legal consequences or effects on the public body before making such an order (Imam, [46]). One well established principle being that the courts will not make a mandatory order to require compliance with a statutory duty where that is impossible, and Lord Sales gave several examples of such a case (at [49]) in his judgment. 

This is why Lord Sales described mandatory orders as having a “super-added force” with the potential of having an unduly distorting effect upon the overall balance already struck by the authority when carrying out its functions (at [63]). It is constitutionally impermissible for the courts to grant relief in a way that results in the judiciary effectively stepping into the shoes of government – the authority referred to by Lord Sales (at [64]) being North Wales Police v Evans [1982] 1 WLR 1153, where the House of Lords refused to compel the Chief Constable to reinstate a probationary constable after the Chief Constable was found to have unlawfully dispensed with the probationary constable’s services (see also the obiter comments of Stamp LJ in R v Bristol Corpn, Ex p Hendy [1974] 1 WLR 498, p 501).