Angels of our better nature? Campaigners fight for judicial review amid government attack
When the local council gave permission to put up a 66 metre wind turbine next to the home of Chris and Julia Holder, it initially seemed they were powerless to stop it. Despite 1,125 letters of objections, the plans went through. It was judicial review which gave the couple the ability to fight the case in the Court of Appeal.
When the Department for Education stripped headteachers of their discretion to approve absences during term-time, a group of parents suddenly found they couldn’t afford to take their kids on trips overseas. They used judicial review to challenge the decision.
When Sefton Borough Council refused to fund care for elderly Ms Blanchard until she’d diminished her savings to £1,500, it was judicial review which ended up finding the policy unlawful. The decision forced 120 other authorities to review their budget decisions and saved vulnerable people from having their savings slashed to pay for care.
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 protestors. But we should not stare down at our plates. Once judicial review goes, we’ll never get it back.