The government is trying to reshape our justice system. Photo: Flickr/Bill Tyne
Show Hide image

Sabotaging judicial review is one of this government's most vicious acts

Removing the right for the individual to seek legal remedy for unlawful behaviour of the state – one of the coalition’s worst moments?

The coalition government is guilty of many crimes since its creation in 2010. But by steamrollering through changes to judicial review, they are seeking to insulate themselves from challenge, and restrict the ability of the British people to hold to account future governments that break the law.  

Ministers are often defendants to applications for judicial review, precisely why they do not like it. But such applications are not brought lightly, and, crucially, have to pass an initial test of securing the court’s permission to proceed to a hearing. Very often the mere lodging of an application will produce a rethink by the decision making body leading to the correction of any flaw in the process. Equally, other interested parties can seek the court’s permission to intervene in the case to offer expert opinion in support of one or other of the parties. Many cases are resolved without a full hearing. 

But this isn’t good enough for the present government, now engaged in seeking to reverse the substantial defeats it sustained in three votes in the House of Lords on amendments which sought to preserve judicial discretion in determining applications on a range of issues.

The fettering of judicial discretion has been a recurring feature of the government’s numerous attempts to reshape our justice system, a curious way of building up to the celebrations of the 800th anniversary of Magna Carta next year. It proved unacceptable to peers across the chamber, pitifully few of whom spoke in support of the government.

The proposals have attracted trenchant criticism from, among other eminent lawyers, the President of the Supreme Court, Lord Neuberger, the Master of the Rolls, Lord Dyson, the former Lord Chief Justice, Lord Woolf, and the Joint Committee on Human Rights, the Constitution Committee and the Delegated Powers and Regulatory Reform Committee. Characteristically, the Lord Chancellor is determined to reverse the decision of the Lords, albeit with some minor unsatisfactory changes in relation to interveners.

The House of Lords is traditionally, and reasonably, reluctant to challenge the elected chamber, but where the rights of the citizen are concerned, and where the government can be seen to legislate to immunise itself against legal challenge, there is an overwhelming case for it to do so. 

Given the political arithmetic of the second chamber, much will depend on the Liberal Democrats, who have long, and with some justification, proclaimed themselves to be supporters of civil liberties and accountable government. Several spoke and voted in favour of the amendments passed by the Lords.

It falls to them and their colleagues in the House of Commons to redeem their party’s reputation by joining crossbench and Labour peers, and hopefully some Conservatives, in rejecting the government’s amendments to the Bill, which, for the record was never part of the coalition agreement.

Shadow justice minister Andy Slaughter MP and Labour justice spokesperson in the Lords Jeremy Beecham

Getty
Show Hide image

How Theresa May laid a trap for herself on the immigration target

When Home Secretary, she insisted on keeping foreign students in the figures – causing a headache for herself today.

When Home Secretary, Theresa May insisted that foreign students should continue to be counted in the overall immigration figures. Some cabinet colleagues, including then Business Secretary Vince Cable and Chancellor George Osborne wanted to reverse this. It was economically illiterate. Current ministers, like the Foreign Secretary Boris Johnson, Chancellor Philip Hammond and Home Secretary Amber Rudd, also want foreign students exempted from the total.

David Cameron’s government aimed to cut immigration figures – including overseas students in that aim meant trying to limit one of the UK’s crucial financial resources. They are worth £25bn to the UK economy, and their fees make up 14 per cent of total university income. And the impact is not just financial – welcoming foreign students is diplomatically and culturally key to Britain’s reputation and its relationship with the rest of the world too. Even more important now Brexit is on its way.

But they stayed in the figures – a situation that, along with counterproductive visa restrictions also introduced by May’s old department, put a lot of foreign students off studying here. For example, there has been a 44 per cent decrease in the number of Indian students coming to Britain to study in the last five years.

Now May’s stubbornness on the migration figures appears to have caught up with her. The Times has revealed that the Prime Minister is ready to “soften her longstanding opposition to taking foreign students out of immigration totals”. It reports that she will offer to change the way the numbers are calculated.

Why the u-turn? No 10 says the concession is to ensure the Higher and Research Bill, key university legislation, can pass due to a Lords amendment urging the government not to count students as “long-term migrants” for “public policy purposes”.

But it will also be a factor in May’s manifesto pledge (and continuation of Cameron’s promise) to cut immigration to the “tens of thousands”. Until today, ministers had been unclear about whether this would be in the manifesto.

Now her u-turn on student figures is being seized upon by opposition parties as “massaging” the migration figures to meet her target. An accusation for which May only has herself, and her steadfast politicising of immigration, to blame.

Anoosh Chakelian is senior writer at the New Statesman.

0800 7318496