Undemocratic, unnecessary and unfair, over the past eleven months the Government’s crude attempts to curtail judicial review have been the subject of intense parliamentary debate. And yet today, as MPs are once again called to vote on the proposals, the government is attempting to pull off an unusual parliamentary feat: disregarding fierce cross-party criticism to make its proposals worse, rather than better.
Judicial review is the legal mechanism by which individuals and organisations can ask a court to check whether a public authority has acted lawfully. The powers of the court in a judicial review are limited, but in a modern democracy, where great power is concentrated in the hands of the executive, it is one of the great and vital levelers.
It comes as no surprise, then, when Governments complain about judicial review. From Ministers through to local authorities, it can be embarrassing when a court finds you have acted arbitrarily or unlawfully. But this Government has taken things a step further, and has legislated in a number of ways to make it harder for those subject to its awesome power to hold it to account, with the Criminal Justice and Courts Bill the latest front in the battle for accountable governance.
There are two main problems with the proposals in Part 4 of the Bill. First, they would almost completely tie the hands of the judges. Not only does removing judicial discretion create a real risk of injustice in individual cases, but it grievously undermines the separation of powers between the judiciary and the executive. When the government is being challenged, it it hugely inappropriate for the government to set all the rules of the game. The second problem is that the proposals would have a chilling effect on judicial review, introducing massive financial disincentives for individuals and expert third party interveners to participate in the process.
Liberal Democrat MPs spoke against the proposals in the House of Commons, where it was suggested that some form of compromise might be made. But the government refused to respond to expert advice and as a result of its own intransigence, suffered three decisive defeats in the House of Lords, with Liberal Democrat Peers playing a crucial role in delivering some much needed fairness back into the Bill.
The amendments made by the Lords were moderate. Rather than wreck Part 4, they simply ensured that judicial discretion would not be excessively curtailed. And yet on Friday it was announced that the Government would ask the House of Commons to reject all the improvements made to Part 4. Not only that, but the Government will also ask MPs to vote for an amendment to the intervener provisions that would create a situation even worse than that originally envisaged.
Under the new government amendment, judges will be required to make costs orders against interveners in four broad circumstances. Absolutely no judicial discretion, no room for the judge to consider what justice requires in each particular case. As well as showing complete disregard for the judges, the amendment shows either complete disregard for or fundamental misunderstanding of legal processes. In order to escape a costs order, interveners will effectively be required to guess at the outset of legal proceedings both the outcome of the case and the route the judge will take to get there. It’s an impossible task. The scope for perverse results is vast – an intervener could raise the decisive winning argument, and yet still be liable to pay costs. It’s difficult to see how any trustee or Chief Executive would sanction their organisation to take such a risk.
Perhaps it is unsurprising that a government seeking to shut down legitimate challenges to state abuse of power should also show contempt for parliament and respond to intelligent attempts at compromise with a hardened position. But the real victims of these hard-ball tactics won’t be parliament, the courts, the lawyers or the interveners. They’ll be individuals in care, victims of police brutality, groups concerned with issues as diverse as HS2, fox-hunting and hospital closures. Let’s hope that our elected representatives see the government’s attempted coup for what is it and when asked to vote in favour of the powerful choose to stick with the rule of law instead.
‘The Independent View‘ is a slot on Lib Dem Voice which allows those from beyond the party to contribute to debates we believe are of interest to LDV’s readers. Please email [email protected] if you are interested in contributing.
* Sara Ogilvie is the policy officer of Liberty.
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16 Comments
I had been concerned about this for some time, but was pleased that the Tory bit of the Coalition suffered a defeat a few weeks back.
Surely, the Tory harder-line stance is not going to help them get this measure through either the Lords or Commons.
It would be interesting to know the stance of the two UKIP MPs, given that we are talking about the discretion of British judges, and given that they voted recently for Labour’s NHS Bill.
My experience as a councillor has put me totally on the other side on this one. Once upon a time I’d have been all for proposals in such an article such as this.
But JRs are far from the little guy taking on the all-powerful state. They’re now used as a routine procedure to contest any government decision you don’t like, hoping that the complexity of legislation will trip the Government up somewhere. In the same way that celebrities seek injunctions over their indiscretions, it’s the big players, funded with legal opinion, who are bringing JRs forward. Housing developers are notorious in seeking JRs after planning appeals which don’t go the way they hoped, never someone looking to build a single house.
Take the example of HS2 here. The Government has decided, based on manifesto commitments, to build it. However it had not only to win the argument, but as it was clear that the objectors would take it to JR, not based on any real procedural issues but purely based on hoping to stop the scheme, the costs and timescales have escalated. When it came to court, the objections were thrown out. And then the objectors complained about the costs and timescales increasing!
We had a local issue where a decision of council was overturned at JR due to a technicality that no council officers (or objectors) spotted when the decision was made. It only came up in a legal fishing expedition by a sulking town council afterwards, who won in court. It would have had no impact on the decision-making had it been known in advance (a process issue) but given the requirements for a full process ahead of the decision, we haven’t had the heart to restart.
We do need protections – but we also need an environment when an authority can carry out its decisions. At the moment, it’s too difficult to make controversial decisions with the threat of JR hanging over the way it is, and the temptation to duck and defer is great when this isn’t in the public interest. There may well be issues over detail, and how individuals can challenge decisions that affect them personally – but the balance isn’t right at the moment and in my view the bill is moving in the right direction
tpfkar raises some good points. JR has made infrastructure projects almost impossible now, and added hugely to the build costs of them. This is part of why we are falling ever behind the rest of the developed world in our transport infrastructure in cities and between cities.
Having said that there clearly does need to be a legal check on the executive, at both national and local level. In most sensible countries this is provided by a constitution, but for as long as the UK resists coming into the 19th century ours will have to come from JR instead.
In summary, there are legal changes needed, but the amendments to the Bill made by the Lords are good and well measures. Lib Dem MPs should vote to retain those amendments, and defeat the govt’s attempts to delete them. They should then vote for the Bill as amended.
This is a good blog on the BBC pages on this subject too. http://www.bbc.co.uk/news/uk-30226781
> JR has made infrastructure projects almost impossible now, and added hugely to the build costs of them.
Don’t see the logic, whilst some objectors did take the JR route over HS2, their action demonstrated just how limited the scope of a JR was with respect to planning and infrastructure projects. Also it should be born in mind, with respect to HS2, that todate the government has spent about £1 billion, which given the size of the project is small change.
The main reason why infrastructure projects take time is more to do with political procrastination rather than anything else. A high-speed rail network (not just a shuttle service) was originally proposed in the 1960’s, its taken governments and their supporters fifty years to make a decision, okay so one year of that was down to objectors wanting a JR. We’ve seen similar with new nuclear, it was known in the early 1990’s that new nuclear would be required, but the first contract has only just been signed and approved…
I must admit to not knowing the details of the Lords amendments so I can’t comment on those. But I am aware of how Judicial Reviews have been abused in recent years and how they’re making democratic decisions at all levels difficult in practice. I tend to agree with tpfkar that “far from the little guy taking on the all-powerful state they’re now used as a routine procedure to contest any government decision you don’t like, hoping that the complexity of legislation will trip the Government up somewhere”
Ultimately this is about democracy. Under judicial review, unelected judges can overrule a democratically elected body and as a rule of thumb that doesn’t seem right to me.
Anyone who thinks this is about infrastructure/Planning decisions clearly hasn’t read the article or looked at the proposed legislation (in any event planning decisions are being moved to a specialist tribunal) – it’s about being able to take public authorities to court when they don’t live up their statutory duties or do things that are illegal. @tpfkar it is not about ‘big players’. It’s mostly about very small players – small charities or advice agencies who may wish to employ a lawyer to get homeless persons re-housed or a vulnerable persons care needs met.
It’s hugely concerning that libdems as soon as they join the institutions of Government lose any perspective on the need for community based, grass roots or civil society groups to be able to challenge decisions in the Courts on the basis of what the law actually says. Judicial review and community law activity supported by legal aid (which the Coalition have also dismantled) should be part of our community politics DNA – we say we want to take power away from over-mighty institutions and pass it to individuals; there is no more important power for citizens than to be able to assert their legal rights and challenge decision-makers in courts or tribunals however uncomfortable that might be for those decision-makers. Judges have plenty of tools to stop or throw out frivolous judicial reviews. If our Parliamentarians back these measures it is because they have forgotten about due process! The commentators above say that Judicial review gets abused, but don’t cite any evidence for this,
>Under judicial review, unelected judges can overrule a democratically elected body
No the JR only determines if the democratically elected body actually adhered to the law and its own published rules in the case being investigated.
No we need full fat JR along with other avenues to enable the public to keep both local and national government accountable and in touch. Remember back in the 80’s the unions complained about the constraints placed on them by government, subsequently they learnt the new ropes and discovered that the regulations enabled strike votes for example to carry more weight than previously.
If I had not won my Judicial Review 18 years ago, my life would have been wrecked.
Government appears to want to restrict access to this process by a large chunk of the population.
Judicial review stops public bodies, elected or not, doing things that are illegal.
It is the most essential safeguard of civil liberties.
Curtailing access to this important protection is a disgrace, at least as bad if not worse than the Secret Courts leguslation.
James and Antony are right. It is truly shocking that only Sarah Teather voted against these measures which are oppressive, illiberal and unnecessary. Every time I think the Lib Dem MPs can’t betray their core values any further I’m proved wrong. This legislation is a disaster for any attempt to hold the powerful state to account and to act lawfully.
@Jo Shaw
Only Sarah Teather voted against . . .? Truly shocking. Thanks for that information.
@Antony Hook
I think you summed up perfectly! How can LibDems support such an illiberal position?
Judicial review is used by voluntary organisations to challenge decisions to withdraw funding when the decision has been taken without due process – for example, without any attempt to assess the impact of the withdrawal on services or opportunity for the affected organisations to appeal. If anything, they don’t use it enough.
The point about the supremacy of democratically-elected bodies is valid, but then if the law set down by such bodies allows for judicial review, that’s because democratic bodies do sometimes abuse their powers. That’s why a written constitution would be an advance and why in all mature democracies there’s some sort of legal check on state power.
The point of jr is that the executive (the government) is paramount but must act within the law. The courts decide what the limits of the law is for everyone, including government. The civil war was about the King (for which now substitute the executive) believing he was above the law. Our constitutional settlement is based on the fundamental principle that we are all subject to law. Grayling’s Bill supported by the Lib Dem MPs bar one makes it much less likely the government will be required to act legally.
Unfortunately, only one Liberal Democrat MP voted against rejecting the Lord’s amendments.
All other Liberal Democrat MPs supported this government’s proposals.
Its seems the Liberal Democrats no longer believe in civil liberties.