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9 December 2014

How Chris Grayling is killing off judicial review – and why it matters

Judicial review is the mechanism by which citizens can hold the government to its own laws. With the Criminal Justice and Courts Bill, the justice secretary is trying to put it out of reach.

By Caroline Criado-Perez

In 2011 an organisation called Rights of Women (RoW), which provides free legal advice to vulnerable women, produced a report called “The Value of Legal Aid” (pdf). They spoke to legal aid lawyers, Violence Against Women professionals, and female victims of domestic violence who had received legal aid. One woman they spoke to revealed the six-year fight she had protecting her children from “a controlling and abusive ex-husband” who was ultimately imprisoned as a child abuser. She would have found it “impossible” to fund her legal bills without legal aid, she said. Another respondent told the story of Lucy*, a disabled woman who was told she had to move out of her Housing Association property because they wanted to pull it down. She was shown three properties, none of which were suitable because of her disability. But despite medical evidence proving Lucy could not live in the properties she had been shown, the Housing Association said that she was making herself “intentionally homeless”. This would mean the Housing Association had no responsibility to house her. Without legal aid and the help of her Violence Against Women worker, Lucy could not have forced the Housing Association to find her the property in which she is now living.

The report makes clear the important role legal aid plays in ensuring the vulnerable have the access to justice to which they are entitled to under the law. It was prepared to remind the government of their duties, as the Legal Aid Sentencing and Punishment of Offenders Bill (LASPO) passed through Parliament. But when I speak to Emma Scott, director of RoW, she tells me that although they managed to soften the impact of LASPO, there remain fundamental issues with the Bill. One glaring issue is the discrepancy between LASPO’s own definition of domestic violence, and the evidence required for victims to access legal aid. While LASPO accepts that abuse can be, for example, psychological or financial as well as physical (and evidence points to “coercive control” being an early sign of a relationship that could prove fatal), the only evidence that is acceptable under LASPO is much harder to obtain for women who have experienced non-physical abuse.

The contradictions do not end there. One of the few pieces of evidence that is acceptable under the new legislation is a non-molestation order. But non-molestation orders are not easily obtainable – one woman who had been intimidated and threatened by an ex-partner for two years was only able to obtain one because she had access to legal aid. Under the new legislation, she would have needed a non-molestation order in order to gain access to the legal aid that helped her get the order in the first place. And then there’s the time limits imposed on the evidence. Scott tells me that under the new rules, evidence is only eligible if it has been issued within the last two years. In a 2013 RoW report on how the legal aid changes are affecting victims of domestic violence, Anne*explained how her legal aid was refused because she was £30 over the limit, as her parents had given her money to clear a debt. “I was told I could apply again in three months but my evidence of [domestic violence] is then out of date.” She will not qualify. And like 60.5 per cent of the women RoW spoke to, she may end up having to do nothing about her abusive partner, but cross her fingers for the best. RoW contends that the failure to provide for victims like Anne means that the changes are not lawful. As a result, they have brought a judicial review, which will be heard at the High Court on Friday.

Judicial review is the only mechanism by which ordinary people can challenge the lawfulness of decisions made by public bodies. When I ran the campaign to feature a woman on banknotes, it was the threat of judicial review that helped focus the Bank of England’s mind. When the police were keeping the DNA of millions of innocent people on file, it was judicial review that put an end to this pernicious and illiberal practice. When the prison service wanted to be exempt from treating the children in their custody under the auspices of the child protection act, it was judicial review that forced them to act within the law, just as the rest of the country is expected to. Sometimes, public bodies consider themselves to be above the law; judicial review not only reminds them that they are not, but provides the tools by which ordinary citizens can force them to adhere to the laws to which everyone else is subject.

For this reason, judicial review can be irritating for governments. Indeed, in a recent debate in the House of Lords, Conservative Peer, Lord Deben confirmed this. “As a mechanism, every now and then it is annoying to ministers”, he said, but “[t]hat’s what it’s there for: to make ministers annoyed enough to do the right thing. It made me a better and fairer minister”. Unfortunately, Chris Grayling, Secretary of State for Justice and Lord Chancellor, doesn’t see it that way. In the Criminal Justice and Courts Bill, which is back in the House of Lords today, Grayling is attempting to severely retard the ability of citizens to force the government to act within the law. Sara Ogilvie, policy officer at the human rights campaign group Liberty, condemns the bill as “death by a thousand cuts of the entire justice system”.

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Judicial review is already “a very limited form of redress”, Ogilvie tells me. You need to get permission from the court to bring one, and the court can’t reverse the decision being challenged: the court can only force the public body to take it again if they find that the decision was made in an unlawful, irrational, or procedurally incorrect manner. In a Telegraph article from April this year, however, Grayling denounced judicial review as: “a must-use tool for pressure group lobbyists”, and in a Daily Mail article from September last year as “a promotional tool by countless left-wing campaigners”. He has also claimed that judicial reviews deal with “minor technicalities” (a description that will be news to children who were being treated as adults in prison) and that organisations use individuals as “human shields” in order to pursue their own dastardly ends, like when Southall Black Sisters forced Ealing Council to reinstate funding for specialist domestic violence services for black and minority ethnic women.

As a result, Grayling is trying to push through three key changes that Ogilvie tells me will prevent judicial review from being “an effective and accessible legal mechanism”. Judges can currently require individuals to provide financial information about themselves and those who support them, to ensure that they can be liable for costs if required; Grayling wishes to make this mandatory. Grayling also wants to remove judges’ discretion about how to act if they find that although a decision was taken incorrectly, the outcome would inevitably have been the same. Currently, they can still order the decision to be re-taken; or they can decide not to, but to make a “declaration” that essentially censures the public body, and sets a precedent for future decisions. Grayling not only wants to force the judge not to order public bodies re-take the decision in such cases, he also will not allow them to make a declaration – and he wishes to lower the threshold from “inevitable” to only “highly likely”. And finally, organisations can currently be invited by the court to “intervene” in cases; they do not appear for either side, but essentially function as expert witnesses, outside of the adversarial process. Grayling wants to curtail this practice by forcing interveners to cover not only their own costs, as they currently do, but also any costs that arise out of their intervention (for example, the government’s lawyers having to do further work to rebut the intervener’s pertinent points) – and they would be liable even if the issue they raise turns out to be decisive. Again, it is already within the judge’s power to award costs, but Grayling wishes to make it mandatory.

The theme of removing judges’ discretion that emerges from these changes seems at odds with a Conservative-led government that one would expect to eschew centralised government edicts in favour of on the ground, localised expertise. Ogilvie agrees. “It’s not in keeping with conservative principles. They don’t believe in a big state, they believe the state should be limited, so it’s really odd to find this modern breed of conservatism that doesn’t respect that.” I ask her why she thinks this is happening. “The cynical among us would point out that this government has been on the receiving end of a number of judicial reviews that they’ve lost. You can either act within the law, or you can stop people from challenging you when you don’t – and it looks like they’ve gone for the latter.” The Human Rights Joint Committee Report on the proposals to reform judicial review makes a similar point, noting that “the Lord Chancellor and Secretary of State for Justice is himself often the defendant in judicial review proceedings”. While they accept that restrictions on access to justice are “in principle capable of justification” (for the purposes for discouraging weak claims, for example), they found that Grayling’s proposals were neither proportionate nor properly evidenced. They criticised Grayling’s “politically partisan reasons for restricting access to judicial review” (his “left-wing pressure groups” comments), soberly noting that they “do not qualify as a legitimate aim recognised by human rights law as capable of justifying restrictions on access to justice”.

Grayling claims that legislators are overwhelmed by frivolous cases, brought by politically partisan pressure groups. But the evidence simply doesn’t bear him out. In evidence to the Public Bill Committee, Martin Westgate QC pointed out,“[g]iven the number of administrative law decisions, the surprising thing is that there are so few applications, not that there are so many.” And Liberty points to the government’s own consultation paper, which explained that on average campaigners bring only 50 judicial reviews per year, amounting to 0.4 per cent of all judicial reviews – and that “these JRs tend to be relatively successful when compared to other JRs”. Hardly evidence of a stream of frivolous time-wasting claims.

Indeed, just last week, another frivolous, time-wasting judicial review was brought – and another of Grayling’s policies found unlawful. Under a new “incentives” regime brought in last year, prisoners were effectively banned from receiving or buying books, a move that again removed discretion from those on the ground, since prison governors already had powers to determine how many and what types of parcels prisoners could receive. Grayling just wanted to make the decision mandatory. But on Friday, Mr Justice Collins ruled that this policy was unlawful. Another blow for Grayling; another “technicality” exploited by a “left-wing” pressure group, using a citizen (in this case a prisoner denied the books she wanted) as a “human shield”.

When I spoke to Frances Crook of the Howard League shortly after the ruling came through, she told me that the Howard League had only brought the JR because “we’d already tried everything else”. They campaigned, they petitioned, they demonstrated, they wrote to the Secretary of State for Justice, they organised for poets and authors to write, they published open letters, they got prisoners to write to Grayling. “None of that seemed to have any effect”. Crook finds the proposed changes to judicial review very troubling. She is not sure if they would have been able to bring the case they have just won under the new proposals. “It would be very [financially] risky”, she says. And it’s a risk most small “left-wing” pressure groups can ill afford to take. Emma Scott of Rights of Women is even more definite. “No,” she says, when I ask if she would be able to bring Friday’s judicial review under the new proposals. “In terms of the voiceless being silenced, it’s a really good example of how that’s happening”. Ogilvie is similarly unsure if Liberty would have been able to intervene in the case that resulted in deletion of over a million innocent people’s DNA profiles, because of the “unquantifiable cost risk”. Public bodies tend to hire very expensive lawyers, she tells me. Justice is being sold off to the highest bidder.

It is hard to escape the conclusion that, with these proposed changes, Grayling is trying to put himself above the law. Because whatever the Secretary of State for Justice claims, judicial reviews are not politically partisan. They are about no more and no less than acting within the law, whether the government in power is left wing or right wing. Indeed, in Labour’s final year in power, over 9,000 applications were made for judicial reviews to be heard, and over the years applications have been made by, among others, the Daily Mail, the Daily Telegraph and the Countryside Alliance. Are these the left-wing malcontents to whom Grayling refers? Just yesterday, permission was given for a judicial review of the government’s “emergency” data retention act; the case was brought by the Labour MP Tom Watson and Conservative MP David Davis (the latter doubtless being a known left-wing mole). 

There is already a nightmarish vision of where this all might end: contained within the same Bill as the judicial review changes are proposals for “secure colleges”, where the most vulnerable convicted children in the country will be detained. The Bill will allow for the use of force to ensure good order and discipline in these institutions. Ogilvie tells me that “when that formulation has been on statute books before, children have died”. Experts are of course concerned about this proposal, and would be keen to challenge its legality. But if the judicial review changes go through, who will be able to?

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