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  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