For those who welcomed last week’s concessions on criminal legal aid, the Lord Chancellor’s offensive on Judicial Review the following day was a bitter blow for British justice. Judicial Review is the ultimate protection for ordinary people against arbitrary power; holding government to certain standards of rationality and lawfulness and demanding respect for individual rights. Now the Ministry of Justice seems determined to crush challenges before they have even begun and undermine this bulwark against state abuse.
The latest proposals include a new test for standing that will seriously limit the ability of groups or individuals with a genuine interest in an issue to bring claims that benefit others who don’t have the resources or capability to bring them themselves. New excessive cost implications for those who do make it into court are also on the table. The motives are clear – to exclude more Judicial Reviews, make funding harder to obtain and make it more difficult for NGOs to get involved. In short – to thwart claims at source, silence the vulnerable and shield the state from legal challenge.
The “justification” is that many Judicial Reviews are launched by campaign groups as a “delaying tactic”. But the Government’s own figures suggest otherwise. Just 50 challenges a year are lodged by such organisations – out of 11,500. The MoJ argues that legal action should be restricted to only those with a direct personal interest; bizarrely claiming that NGOs “overcomplicate” matters and ignoring the fact that claims brought by an interested NGO can often serve to clarify the law for the benefit of others. Yet it also sees fit to expose ordinary people to ruinous financial liability via disastrous new restrictions to protective costs orders for individual claimants.
It’s not just NGOs who’d be affected. Any lawyer pursuing public law challenges on behalf of individuals would face prohibitive cost risks, including non-payment for intial work in some circumstances. And, the crucial public sector equality duty also finds itself in the firing line, meaning it would be harder to hold public bodies to account for discriminatory practices.
These plans were unveiled alongside a Daily Mail tirade in which the Justice Secretary labelled Judicial Review a “tool of the Left”. The reality is somewhat different. Judicial Review affects Governments of all political persuasions. It’s used across a variety of issues, from HS2 to fox hunting, and has secured redress for some of society’s most vulnerable. It was this tool that secured a fresh inquest into the death of former Royal Military Police officer Anne Marie Ellement. Without Judicial Review, our Gurkha veterans might never have achieved justice.
All Judicial Review claims are sifted at an early stage by the courts and most fail at that stage. Even when cases go on to a full hearing, claimants often have an uphill battle and the courts frequently give the Government the benefit of any doubt. It’s deeply irresponsible to suggest otherwise. We’re all held to certain legal standards – why should the Government be any different? It’s time this Lord Chancellor started taking his responsibilities seriously – rather than playing politics with our justice system.
Slamming courtroom doors shut by making it financially impossible for ordinary people to pursue claims against the Government is a chilling continuation of the work of the disastrous Justice and Security Act, which handed the state privileged access to one-sided justice. Not satisfied with such special standing, it seems Ministers are now intent on insulating themselves from challenge and scrutiny altogether.
