The coalition government is guilty of many crimes since its creation in 2010. But by steamrollering through changes to judicial review, they are seeking to insulate themselves from challenge, and restrict the ability of the British people to hold to account future governments that break the law.
Ministers are often defendants to applications for judicial review, precisely why they do not like it. But such applications are not brought lightly, and, crucially, have to pass an initial test of securing the court’s permission to proceed to a hearing. Very often the mere lodging of an application will produce a rethink by the decision making body leading to the correction of any flaw in the process. Equally, other interested parties can seek the court’s permission to intervene in the case to offer expert opinion in support of one or other of the parties. Many cases are resolved without a full hearing.
But this isn’t good enough for the present government, now engaged in seeking to reverse the substantial defeats it sustained in three votes in the House of Lords on amendments which sought to preserve judicial discretion in determining applications on a range of issues.
The fettering of judicial discretion has been a recurring feature of the government’s numerous attempts to reshape our justice system, a curious way of building up to the celebrations of the 800th anniversary of Magna Carta next year. It proved unacceptable to peers across the chamber, pitifully few of whom spoke in support of the government.
The proposals have attracted trenchant criticism from, among other eminent lawyers, the President of the Supreme Court, Lord Neuberger, the Master of the Rolls, Lord Dyson, the former Lord Chief Justice, Lord Woolf, and the Joint Committee on Human Rights, the Constitution Committee and the Delegated Powers and Regulatory Reform Committee. Characteristically, the Lord Chancellor is determined to reverse the decision of the Lords, albeit with some minor unsatisfactory changes in relation to interveners.
The House of Lords is traditionally, and reasonably, reluctant to challenge the elected chamber, but where the rights of the citizen are concerned, and where the government can be seen to legislate to immunise itself against legal challenge, there is an overwhelming case for it to do so.
Given the political arithmetic of the second chamber, much will depend on the Liberal Democrats, who have long, and with some justification, proclaimed themselves to be supporters of civil liberties and accountable government. Several spoke and voted in favour of the amendments passed by the Lords.
It falls to them and their colleagues in the House of Commons to redeem their party’s reputation by joining crossbench and Labour peers, and hopefully some Conservatives, in rejecting the government’s amendments to the Bill, which, for the record was never part of the coalition agreement.
Shadow justice minister Andy Slaughter MP and Labour justice spokesperson in the Lords Jeremy Beecham.
Judicial review challenges government decisions, maintains government accountability and subjects them to scrutiny in the courts but David Cameron has claimed that the procedure is “time-wasting” and the justice secretary, Chris Grayling, has accused charities of exploiting cases for “publicity purposes.”
Judicial review is a safeguard of human rights and a fundamental part of democratic process.
A coalition of 35 organisations claims charities may face punitive costs if they challenge future government decisions.The 35 charities work on a wide range of issues, including representing children and older people, people with disabilities, bereaved families and victims of torture on issues as diverse as housing, fair treatment at work, healthcare, freedom of expression and privacy online.
Andrea Coomber, director of the legal rights group Justice, which coordinated the protest, said: “Judicial review is one of the very few means we can challenge public bodies and government departments which act unlawfully. We should all be watchdogs when the government tries to rewrite the rules in its favour.”
Alison Garnham, chief executive of the Child Poverty Action Group, said: “Judicial review is often the last line of protection the most vulnerable people in our society have against bad decisions made by powerful decision-makers. The public interest is served by empowering ordinary citizens to challenge unlawful decision-making, not by rewriting the rules so decisions made by the state, in effect, are put beyond the rule of law.”
The supporting charities include: Action against Medical Accidents, AIRE Centre, Amnesty International UK, Article 19, Asylum Support Appeals Project, Campaign for Freedom of Information, Children’s Rights Alliance England, Disability Law Service, English PEN, Equality and Diversity Forum, Fair Trials International, Human Rights Watch, Immigration Law Practitioners Association, Law Centres Network, JustRights, Just for Kids Law, Liberty, The Media Legal Defence Initiative, National Autistic Society, NDCS, Open Rights Group, Prisoners’ Advice Service, Privacy International, Public Concern at Work, Reprieve, Redress, Rights Watch UK and Sense.
Grayling has tried to take legal aid from the poorest and most vulnerable, in a move branded contrary to the very principle of equality under the law. He turned legal aid into an instrument of discrimination. He has tried to dismantle a vital legal protection available to the citizen – judicial review – which has been used to stop him abusing his powers again and again. He has tried to restrict legal aid for domestic abuse victims, welfare claimants seeking redress for wrongful state decisions, victims of medical negligence, for example. And now he wants to take away citizens’rights to take their case to the European court.
His every action is intent on tearing up British legal protections for citizens and massively bolstering the absolute powers of the state.
The hypocrisy is evident in that this is a government which claims to pride itself on its dislike for the state. But in every meaningful way, it is vastly increasing its powers, and authoritarian reach.