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

Photo: Getty
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The Brexiteers have lost battles but they are still set to win the war

The prospect of the UK avoiding Brexit, or even a “hard” version, remains doubtful. 

Before the general election, the Brexiteers would boast that everything had gone their way. Parliament had voted to trigger Article 50 by a majority of 372. The Treasury-forecast recession hadn't occurred. And polls showed the public backing Brexit by a comfortable margin

But since the Conservatives' electoral humbling, the Leavers have been forced to retreat on multiple fronts. After promising in May that the dispute over the timetable for the Brexit talks would be "the fight of the summer", David Davis capitulated on the first day.

The UK will be forced to settle matters such as EU citizens' rights, the Irish border and the divorce bill before discussions begin on a future relationship. Having previously insisted that a new trade deal could agreed by 29 March 2019 (Britain's scheduled departure date), the Brexiteers have now conceded that this is, in Liam Fox's words, "optimistic" (translation: deluded). 

That means the transitional arrangement the Leavers once resisted is now regarded as inevitable. After the eradication of the Conservatives' majority, the insistence that "no deal is better than a bad deal" is no longer credible. No deal would mean the immediate return of a hard Northern Irish border (to the consternation of the Tories' partners the DUP) and, in a hung parliament, there are no longer the votes required to pursue a radical deregulatory, free market agenda (for the purpose of undercutting the EU). As importantly for the Conservatives, an apocalyptic exit could pave the way for a Jeremy Corbyn premiership (a figure they previously regarded as irretrievably doomed). 

Philip Hammond, emboldened by the humiliation of the Prime Minister who planned to sack him, has today outlined an alternative. After formally departing the EU in 2019, Britain will continue to abide by the rules of the single market and the customs union: the acceptance of free movement, European legal supremacy, continued budget contributions and a prohibition on independent trade deals. Faced with the obstacles described above, even hard Brexiteers such as Liam Fox and Michael Gove have recognised that the game is up.

But though they have lost battles, the Leavers are still set to win the war. There is no parliamentary majority for a second referendum (with the pro-Remain Liberal Democrats still enfeebled), Hammond has conceded that any transitional arrangement would end by June 2022 (the scheduled date of the next election) and most MPs are prepared to accept single market withdrawal. The prospect of Britain avoiding Brexit, or even a "hard" version, remains doubtful. 

George Eaton is political editor of the New Statesman.