Judicial Review

While we all wait with baited breath to hear when the legal challenge to TR will be lodged, I thought it might be worth looking at the subject and in particular how the government has plans to limit Judicial Review. First off, this is what Wikipedia has to say on the matter:-

Judicial review is a procedure in English administrative law by which the courts in England and Wales supervise the exercise of public power on the application of an individual. A person who feels that an exercise of such power by a government authority, such as a minister, the local council or a statutory tribunal, is unlawful, perhaps because it has violated his or her rights, may apply to the Administrative Court (a division of the High Court) for judicial review of the decision and have it set aside (quashed) and possibly obtain damages. A court may also make mandatory orders or injunctions to compel the authority to do its duty or to stop it from acting illegally.

Unlike the United States and some other jurisdictions, the English doctrine of parliamentary sovereignty means that the law does not allow judicial review of primary legislation (laws passed by the Parliament of the United Kingdom), except in a few cases where primary legislation is contrary to the law of the European Union. A person wronged by an Act of Parliament therefore cannot apply for judicial review except in these cases.

Not surprisingly, the government is not happy and intends to try and limit the scope for what they perceive as mischief, as discussed in this Politics.co.uk blog post:-

Very quietly, the coalition tries to dismantle judicial review

Judicial review sounds boring. You shouldn't put it in a headline, as I have, because people won't click on it. You can’t mention it across a dinner table because everyone will stare at their plate and wait for you to shut up. But it is one of the most powerful tools citizens have over their government. In almost every case of injustice by the Home Office I've come across – especially in relation to immigration and asylum – it is judicial review which allowed the most vulnerable people in the country to challenge the most powerful.

When Chris Grayling was found to have turned legal aid into "an instrument of discrimination", it was because of judicial review. When two immigration officers detained, shouted at, bullied, harassed, imprisoned and conspired against an innocent Indian mother, how did her family fight the case? Judicial review.

So of course it should come as no surprise that the government is trying to dismantle it in the Lords this afternoon. They will do so not by banning it or anything as obvious as that. Instead they will do what the coalition always does: price it out. They will make it too expensive and risky for anyone but the most reckless and wealthy to contemplate.

As shadow justice minister Andy Slaughter told Politics.co.uk:

"Judicial review is an important constitutional method in which the individual can hold the powerful state to account. The public would take a very dim view if any politician sought to undermine that fundamental principle for their own narrow political advantage. Chris Grayling should heed this warning and reverse his plans to curtail judicial review before it is too late."

Or as Bar Council chairman Nicholas Lavender said:

"If a government department or local authority did something you thought was unlawful, like stop your business from trading, close your mother's care home or relocate your child's school, what would you do? Judicial review is an important tool to stop dodgy decision-making by public authorities. It is fundamental to our system of justice and the rule of law that members of the public, including the weakest and most vulnerable, have an effective means of scrutinising and checking executive power."

Part four of the criminal justice and courts bill tries to dismantle judicial review through a four-pronged attack. First, it restricts the use of protective costs. Second, it exposes friends, relatives and associates of a claimant to financial costs. Third, it makes charities and NGOs who get involved in a case liable for costs. And fourth, it shields public bodies which have acted unlawfully from public scrutiny.

Protective costs limit how much of the other side's legal costs you have to pay if you undertake the case. Without it, the financial costs of pursuing judicial review become very daunting. The bill prevent judges granting protective cost orders until permission is granted, a stage which already requires lots of expensive legal work to get to. It's not even a problem – only a handful of these orders are granted a year anyway.

Prong two of the attack makes claimant's friends, colleagues, family and associates – anyone who might be able to help them financially, basically - liable to the legal costs. The emotional impact of this is severe. Someone may be willing to risk their own wellbeing and livelihood for something they believe in, but it feels entirely different if you’re risking the livelihood of those around you.

The measure against charities and NGOs is basically an attack on expert commentary. You can see why. Officials at the Ministry of Justice always seem averse to hearing from experts, because experts so rarely agree with them. As things stand, they can only contribute expert advice and guidance with the permission of the court. Making them liable to costs just freezes out people who know what they're talking about from participating in the legal process.

Finally, a no-difference threshold will mean authorities can escape legal challenges even when they’re plainly acting improperly. Lord Pannick, Lord Woolf, Lord Carlile, and Lord Beecham are all tabling amendments trying to halt the changes. They are right to do so. This is an assault on accountability, scrutiny and civil society's participation in the political process.

When David Cameron first announced the plans he said:

"Consultations, impact assessments, audits, reviews, stakeholder management, securing professional buy-in, complying with EU procurement rules, assessing sector feedback…this is not how we became one of the most powerful, prosperous nations on earth. It's not how you get things done. When you have lobby groups lined up to criticise every action you take; parliamentary select committees ready to jump on every bump in the road; then the rational choice is to be cautious – even over-cautious. But for the sake of our country's progress we have got to cut through this."

This is the Shanghai effect. Ministers go to China, they see an extraordinary level of change and development, proceeding at a pace they can only dream of. It's a skyline that seems to change in real time, as you stare at it. Then they return to the UK, where the debate over high speed rail or a new runway drags on for years, and they dream Chinese dreams of scale and efficiency.

But democracy is not efficient. If one wants true efficiency, one quickly gives up on freedom, hence the fascist insistence that they can get the trains running on time. The drive to get rid of checks and balances is a fundamentally authoritarian instinct.

A coalition which came to power on a civil liberties ticket is now dismantling one of the most powerful weapons citizens have to hold power to account. It is a boring term, more suited to geeks than protesters. But we should not stare down at our plates. Once judicial review goes, we'll never get it back.

So, once again, Chris Grayling manages to unite the legal profession against him, as reported here in the Guardian:- 

Lawyers urge peers to reject judicial review restrictions

Peers have been urged to reject restrictions on judicial review that will make it harder to challenge government and local authority decisions. The criminal justice and courts bill, which lawyers claim will have a “chilling effect” on those seeking justice, goes before the House of Lords this week. 

In a combined statement, the three main legal professions in England and Wales also condemned Ministry of Justice plans to prevent charities and NGOs from intervening in matters of public interest. The Bar Council, which represents barristers, the Law Society, representing solicitors, and the Chartered Institute of Legal Executives (CILEx) in England and Wales are all opposed to the changes.

The plans are aimed at preventing what are described as unnecessary delays. David Cameron, originally blamed judicial review claims for postponing commercial planning developments.

The justice secretary, Chris Grayling, has said “leftwing” campaigners have exploited the process of judicial review to frustrate government initiatives and to generate a “lucrative industry” for lawyers. Although the MoJ has already given some ground in the face of opposition, part 4 of the criminal justice and courts bill would, according to critics: restrict judicial review to the wealthy by limiting protective costs orders; render charities and other interveners liable for costs; and effectively “shield public bodies from proper scrutiny when they act unlawfully”.

The key clauses of the bill are likely to go before the House of Lords either on Wednesday or next Monday. The language of the bill may be impenetrable and legalistic but its effect could be far-reaching.

Last week parliament’s joint committee on human rights was highly critical of the proposed changes, warning: “Restricting the availability of cost-capping orders … would be a disincentive to meritorious public interest challenges being brought.”

The surge in judicial review cases over the past decade has not, in fact, been due to planning objections but to an increase in asylum and immigration cases. In the joint statement, the chairman of the Bar Council, Nicholas Lavender QC, said: “If a government department or local authority did something you thought was unlawful, like stop your business from trading, close your mother’s care home or relocate your child’s school, what would you do?  

“Judicial review is an important tool to stop dodgy decision making by public authorities. It is fundamental to our system of justice and the rule of law that members of the public, including the weakest and most vulnerable, have an effective means of scrutinising and checking executive power.”

Andrew Caplen, the president of the Law Society, said: “This would make it easier for public bodies to act without regard for the law in some of the most sensitive areas of our lives.”

Frances Edwards, the president of CILEx, said: “This means judicial review will only be available to risk takers with deep pockets. Access to justice should be about the merits of your case, not the size of your wallet.

“The bill would also allow a government minister to decide what matters are in the ‘public interest’, rather than independent judges. This would enable future governments to keep certain challengers at arm’s length. That is like letting the title holder choose their challenger.”

The shadow justice minister, Andy Slaughter, has also been critical of the government’s plans. “Judicial review is an important constitutional method in which the individual can hold the powerful state to account,” he said. “The public would take a very dim view if any politician sought to undermine that fundamental principle for their own narrow political advantage. Chris Grayling should heed this warning and reverse his plans to curtail judicial review before it is too late.”

Andrea Coomber, director of the civil liberties organisation Justice 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.

“Pressing ahead with these changes will shield Government – big and small – from scrutiny, will deprive individuals without means of an often much-needed remedy and will undermine the rule of law. MPs and Peers must act now. The ballot box should not be the only realistic remedy for unlawful public action.”