We'll fight them on the beaches, but not, apparently, in the court room

Sometimes I just don’t know where to start. It is Monday and I do have a heavy cold, but this is not why it has taken me so long to start writing this post. Rather, my inertia is born out of an utter bewilderment, bordering on disbelief, as I watch a democratically elected government quite brazenly trash the rule of law, the main thing (some might say the only thing) separating it from a totalitarian state.

Because the Justice and Security Bill is being debated this week, I did think I would be writing about secret courts and how the government’s plan to widen their scope is an assault on our ancient rights to a fair trial and equality before the law.  I say debated, although what I probably mean is that it is being forced through the House of Lords.

We should be thankful that this proposal is at least having to go through the motions of being debated.  In future we may not be so lucky, for today the prime minister announced that he wants to eviscerate the processes for holding government to account by abolishing mandatory consultations, scrapping equality impact assessments and ending the ‘massive growth industry of judicial reviews’.

Naturally he didn’t put it like that.  In fact, he was shameless enough to suggest this was all about promoting economic growth. Apparently our recovery is being held back by ‘consultations, impact assessments, audits, reviews, stakeholder management, securing professional buy in, complying with EU procurement rules [and] assessing sector feedback’. 

Of course it is.  And if removing them means the government gets carte blanche to do what it wants we will soon all be living like kings and no one will have to choose between for their kids.  I can’t wait.  Next we’ll be mobilising for a full-scale war since they are normally pretty good at securing an economic boom and promoting full employment. 

An appropriate analogy, because the prime minister likened our plight to the Second World War (yes really) and said we needed to 'forget about crossing every 't' and dotting every 'i'' and 'throw everything we've got at winning'.  Everything including the rule of law it seems, although the courts had something to say about
that in 1941.    

I am pretty sure our stagnant economic growth has little, if anything, to do with the things Cameron listed in his speech to the CBI, but even if it did that would not be a reason to undermine the vital tools designed for ordinary people to hold those in power to account. 

Cameron claims that equality impact assessments are ‘bureaucratic nonsense’ and merely ‘extra tick-box stuff’.  If that’s what his ministers and officials are telling him then I suspect they are doing it all wrong.  No matter, instead ‘smart people in Whitehall’ will be left to consider equality issues. But it is as unreasonable to expect these ‘smart people’ to think through all possible policy implications as it is unacceptable to leave it up to them alone.

As a woman, I find it particularly insulting that I am expected to be sanguine that an 80-per-cent-male ministerial team and a 65-per-cent-male civil service have my best interests at heart.  It is even less comforting to hear the prime minister thinks that you can avoid marginalising or discriminating against people by treating them all equally.  One size does not fit all, convenient though it might be to suggest otherwise.

Which brings me to the attack on the judicial review process from Cameron and the justice secretary Chris Grayling.  They tell us that many judicial reviews are ‘completely pointless’ and have delayed major projects.  To tackle this the government will reduce the time limit for bringing cases, start charging for reviews ‘so people think twice about time-wasting’ and halve the number of appeals for ‘hopeless cases’ from four to two.

Now I am not a judicial review expert but just a cursory glance at the sort of cases that do get the go ahead shows that it is an important part of the system of checks and balances that makes sure government doesn’t run roughshod over the rule of law.  Making it more difficult to bring one is only going to work in one side’s favour.  

I fear this is another example of ‘policy-itis’, the need to be seen to be doing something, anything, to tackle a national crisis, in this case the lack of economic growth.  Policy made in this vein is rarely based on accurate information and is precisely the sort of bad policy that needs to be subject to judicial review.

I can make this assertion because I have spent a few hours looking at the facts, although it actually only took a few minutes to work out the government has got its wires horribly and alarmingly crossed.  The growth in judicial review may look out of control if you look at the bare statistics, but surely everyone knows you can’t take statistics at face value?

For a start, the figures quoted by Cameron to illustrate his point don’t take into account that many cases settle before they even get to the stage of applying for permission and many more are settled once it’s been granted.  They also fail to acknowledge that the lion’s share of this ‘massive growth’ is taken up by asylum and immigration appeals (in fact, 95 per cent of judicial reviews are non-commercial). 

Furthermore, the time limit is already very short, shorter than any other time limit for legal proceedings, and costs are already quite high, particularly for those who don’t qualify for public funding.  So I am fairly sure that if judicial review cases are 'clogging up’ the courts it is not because of their quantity and they are unlikely to be stopping things getting done, or at least not the things to which the prime minister was referring at the CBI. 

And once you accept that, it is surely more sensible and, let's be honest, cheaper to curtail the growth of judicial review by ensuring government and public authorities improve their decision making in the first place and so render the practice unnecessary.  But that, I suppose, would be far too difficult.

Posted in: Rule of Law, Courts

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