Judicial Review is not part of a vast left wing conspiracy

It is surely no surprise that when there is a predominantly right-wing government, those not in power will use other means to challenge government decisions - that is not necessarily a bad thing.

The second salvo in the Government’s war against Judicial Review was launched last week. At least, that is what you may think after reading the Lord Chancellor Chris Grayling’s fire-breathing op-ed in the Daily Mail, in which he gets within a whisker of saying Judicial Review was invented by Karl Marx to foment socialist revolution.

Beware kite flyers", warned former Court of Appeal judge Sir Stephen Sedley in a recent article. Before Mr Grayling’s launched his latest kite, Sir Stephen argued that placing a political attack dog in the constitutionally delicate role of Lord Chancellor ”exposed the legal system to the vagaries of politics and policy, with profound implications for the rule of law“. Law was hardly insulated before. But it is difficult to remember a Lord Chancellor putting his case in such a nakedly political and incendiary way.

He begins: “The professional campaigners of Britain are growing in number, taking over charities, dominating BBC programmes and swarming around Westminster“. Really, that’s how it starts. Taking over, swarming, dominating. Here come the lefties!

I want to concentrate, for now, on the focus of Mr Grayling’s article, that is the concern that Judicial Review has become a “promotional tool for countless Left-wing campaigners“. I will make three points.

First, Mr Grayling’s case is (again) crushed under the weight of his own department’s statistics. He argues there are now “thousands” of Judicial Review claims and “many are no longer just an opportunity for an individual to challenge an official decision, but are used by campaign groups as a legal delaying tactic for something they oppose“. But how many is many? Well, according to the Government’s consultation document, “50 judicial reviews per year have been identified that appear to have been lodged by NGOs, charities, pressure groups and faith organisations, i.e. by claimants who may not have had a direct interest in the matter at hand” (para 78). So, “many” is actually 50 per year, out of around 11,500. Which, percentage fans, is just shy of 0.5%. And, of that tiny proportion, only six per year, are successful.

According to the milder, but still in its own civil-servanty way, incendiary consultation document, the Government is “concerned that the wide approach to standing has tipped the balance too far, allowing judicial review to be used to seek publicity or otherwise to hinder the process of proper decision-making. ” 50 claims per year, out of 11,500. Tipped the balance too far. Really? There is a respectable argument against the rise of public interest litigation – that some issues are better dealt with by elected representatives than judges – but if its growth so limited, it is difficult to see how any change is justified.

Second, Judicial Review is not a pinko lefty conspiracy. It has regularly been utilised by non-lefties such as The Daily Mail over the Leveson Inquiry, the Countryside Alliance over fox hunting, Stuart Wheeler seeking a referendum over the Lisbon Treaty and Lord Rees Mogg (Senior) attempting something similar over the Maastricht Treaty. I am not sure the mostly Tory councils challenging the high-speed rail link or those criticising the decision to bury Richard III in Leicester (on which see this), both referred to explicitly by Mr Grayling, would be happy to be included in this overly simplistic picture of a left-wing conspiracy.

Third, it is surely no surprise that when there is a predominantly right-wing government, those not in power will use other means to challenge government decisions. But that is not necessarily a bad thing. MPs make the law but are also subject to it. By using Judicial Review, individuals can challenge the legality of actions of the state in court. MPs would probably quite like to get on with their jobs without pesky constituents and judges challenging their decisions. But that’s not how a balance of power system works. As Dr Mark Elliott points out, it would “be surprising if the government were judicial review’s biggest fan“.

There are good reasons why courts have liberalised the rules on standing over the years. As Lord Diplock (not a famous left winger) said in ex parte National Federation of Self Employed [1982] AC 617, 644 (quoted by Richard Edwards):

‘It would, in my view, be a grave lacuna in our system of public law if a pressure group like the federation, or even a single public-spirited taxpayer, were prevented by outdated technical rules of locus standi from bringing the matter to the attention of the court to vindicate the rule of law and get the unlawful conduct stopped.’

The point is that everyone benefits from unlawful conduct being stopped, not just the busy bodies (for more, see this excellent article). It is hardly in the public interest for public authorities to be able to evade the rule of law just because no directly affected individual has brought a claim. In our increasingly complex society, charities and Non Governmental Organisations are often the only ones keeping pace with difficult, convoluted policies and should be allowed to challenge them through the courts where necessary. The consultation document even recognises that “the court may benefit from the knowledge which expert groups can bring”, so what exactly is the point of this change? If it is to limit inconvenient criticism of the Government, then it should be rejected.

Sometimes, especially with Government consultations, a kite is raised in order to distract from what is really happening on the ground. As with the last phase of JR reform, the rhetoric is more extreme than the reality. But the proposals themselves, taken as a whole, are significant (Dr Elliot summarises them here). They will further limit Judicial Review as an effectives means of challenging unlawful state actions. The real mischief, far from the distracting kite, is probably the ongoing restriction on legal aid funding for Judicial Review as well as increasing the cost consequences of bringing one. As Dr Elliot puts it

the most concerning matter is the underlying – but very clearly implicit – assumption that the nature of the relationship between the government and the courts falls to be determined by the former (with the assistance of Parliament where necessary). It is the very fact that such lop-sidedness is hard-wired into our existing constitutional arrangements that makes political restraint imperative; and it is precisely such restraint that is increasingly lacking.

It is now clear that even the limited restraint exercised by Mr Grayling’s predecessor, Ken Clarke, has been jettisoned and replaced by the beat of the ideological drum. Judicial Review is not about left or right. It is about Government being subject to the law. The legal community, as well as the left and right wing civil society groups which think Judicial Review is important, need to respond forcefully in order to bring this kite back down to earth.

This article first appeared on ukhumanrightsblog.com, and is crossposted here with the author's permission

Beware kite flyers. Photo: Getty

Adam Wagner is a barrister at 1 Crown Office Row chambers and editor of UK Human Rights Blog

Getty
Show Hide image

The decline of the north's sporting powerhouse

Yorkshire historically acted as a counterweight to the dominance of southern elites, in sport as in politics and culture. Now, things are different.

On a drive between Sheffield and Barnsley, I spotted a striking painting of the Kes poster. Billy Casper’s two-fingered salute covered the wall of a once-popular pub that is now boarded up.

It is almost 50 years since the late Barry Hines wrote A Kestrel for a Knave, the novel that inspired Ken Loach’s 1969 film, and it seems that the defiant, us-against-the-world, stick-it-to-the-man Yorkshireness he commemorated still resonates here. Almost two-thirds of the people of south Yorkshire voted to leave the EU, flicking two fingers up at what they saw as a London-based establishment, detached from life beyond the capital.

But whatever happened to Billy the unlikely lad, and the myriad other northern characters who were once the stars of stage and screen? Like the pitheads that dominated Casper’s tightly knit neighbourhood, they have disappeared from the landscape. The rot set in during the 1980s, when industries were destroyed and communities collapsed, a point eloquently made in Melvyn Bragg’s excellent radio series The Matter of the North.

Yorkshire historically acted as a counterweight to the dominance of southern elites, in sport as in politics and culture. Yet today, we rarely get to hear the voices of Barnsley, Sheffield, Doncaster and Rotherham. And the Yorkshire sporting powerhouse is no more – at least, not as we once knew it.

This should be a matter of national concern. The White Rose county is, after all, the home of the world’s oldest registered football club – Sheffield FC, formed in 1857 – and the first English team to win three successive League titles, Huddersfield Town, in the mid-1920s. Hull City are now Yorkshire’s lone representative in the Premier League.

Howard Wilkinson, the manager of Leeds United when they were crowned champions in 1992, the season before the Premier League was founded, lamented the passing of a less money-obsessed era. “My dad worked at Orgreave,” he said, “the scene of Mrs Thatcher’s greatest hour, bless her. You paid for putting an axe through what is a very strong culture of community and joint responsibility.”

The best-known scene in Loach’s film shows a football match in which Mr Sugden, the PE teacher, played by Brian Glover, comically assumes the role of Bobby Charlton. It was played out on the muddy school fields of Barnsley’s run-down Athersley estate. On a visit to his alma mater a few years ago, David Bradley, who played the scrawny 15-year-old Billy, showed me the goalposts that he had swung from as a reluctant goalkeeper. “You can still see the dint in the crossbar,” he said. When I spoke to him recently, Bradley enthused about his lifelong support for Barnsley FC. “But I’ve not been to the ground over the last season and a half,” he said. “I can’t afford it.”

Bradley is not alone. Many long-standing fans have been priced out. Barnsley is only a Championship side, but for their home encounter with Newcastle last October, their fans had to pay £30 for a ticket.

The English game is rooted in the northern, working-class communities that have borne the brunt of austerity over the past six years. The top leagues – like the EU – are perceived to be out of touch and skewed in favour of the moneyed elites.

Bradley, an ardent Remainer, despaired after the Brexit vote. “They did not know what they were doing. But I can understand why. There’s still a lot of neglect, a lot of deprivation in parts of Barnsley. They feel left behind because they have been left behind.”

It is true that there has been a feel-good factor in Yorkshire following the Rio Olympics; if the county were a country, it would have finished 17th in the international medals table. Yet while millions have been invested in “podium-level athletes”, in the team games that are most relevant to the lives of most Yorkshire folk – football, cricket and rugby league – there is a clear division between sport’s elites and its grass roots. While lucrative TV deals have enriched ruling bodies and top clubs, there has been a large decrease in the number of adults playing any sport in the four years since London staged the Games.

According to figures from Sport England, there are now 67,000 fewer people in Yorkshire involved in sport than there were in 2012. In Doncaster, to take a typical post-industrial White Rose town, there has been a 13 per cent drop in participation – compared with a 0.4 per cent decline nationally.

Attendances at rugby league, the region’s “national sport”, are falling. But cricket, in theory, is thriving, with Yorkshire winning the County Championship in 2014 and 2015. Yet Joe Root, the batsman and poster boy for this renaissance, plays far more games for his country than for his county and was rested from Yorkshire’s 2016 title decider against Middlesex.

“Root’s almost not a Yorkshire player nowadays,” said Stuart Rayner, whose book The War of the White Roses chronicles the club’s fortunes between 1968 and 1986. As a fan back then, I frequently watched Geoffrey Boycott and other local stars at Headingley. My favourite was the England bowler Chris Old, a gritty, defiant, unsung anti-hero in the Billy Casper mould.

When Old made his debut, 13 of the 17-strong Yorkshire squad were registered as working-class professionals. Half a century later, three of the five Yorkshiremen selec­ted for the last Ashes series – Root, Jonny Bairstow and Gary Ballance – were privately educated. “The game of cricket now is played in public schools,” Old told me. “Top players are getting huge amounts of money, but the grass-roots game doesn’t seem to have benefited in any way.”

“In ten years’ time you won’t get a Joe Root,” Rayner said. “If you haven’t seen these top Yorkshire cricketers playing in your backyard and you haven’t got Sky, it will be difficult to get the whole cricket bug. So where is the next generation of Roots going to come from?” Or the next generation of Jessica Ennis-Hills? Three years ago, the Sheffield stadium where she trained and first discovered athletics was closed after cuts to local services.

This article first appeared in the 19 January 2017 issue of the New Statesman, The Trump era