Comment: A state power grab against the rule of law
By Sara Ogilvie
A vital mechanism for holding state power to account, judicial review is currently undergoing death by a thousand cuts.
Judicial review is used by individuals, businesses and organisations to test the lawfulness of government decisions and actions, from those of ministers to local authorities. Closure of care homes, failure to provide for children with special educational needs and a lack of mental healthcare provision can all be challenged. Actions against the police and claims of a failure to protect human rights also often take this form.
Judicial review underpins the rule of law and is central to our constitutional make-up, in which parliament sets out the laws, public bodies implement them and courts make sure that this implementation complies with the law. Its scope is relatively narrow – the court cannot strike down a law or tell the public body what the outcome of a case should have been. But it's an important check on the abuse or misuse of state power – we all know public bodies don't get it right all the time. It's shameful that the government has taken against even this limited form of accountability.
Seemingly unembarrassed by a complete lack of evidence, the government sought to justify reforms by asserting an out-of-control growth in the volume of judicial reviews in recent years. In fact, outside of the immigration and asylum system (where an increase has already been dealt with by taking judicial review claims out of the courts system), the number of judicial reviews has remained steady. The government has also spoken out against 'abuse' of the process by individuals and campaigning organisations, but again completely fails to evidence any such abuse.
With the criminal justice and courts bill currently working its way through parliament, they're introducing a number of barriers – largely but not exclusively financial – to make it harder to test state actions.
At the moment, expert organisations such as NGOs, charities and even government departments can sometimes be given permission from a judge to 'intervene' in a judicial review. Interventions are only allowed where the judge considers that the organisation's evidence will add value to the legal process. Currently, interveners cover their own costs for participating.
The government now wants these organisations to pay not only their own legal fees but also some of those of the parties launching the judicial review too. Small not-for-profit organisations will be completely priced out of bringing their knowledge and skills to the process.
And it's not just interveners; the government is going to make it financially harder for individuals to bring claims too. Judicial reviews are of course significant for the person or family concerned, but they also often involve issues of public significance. At the moment if an individual cannot afford to pay all the potential legal fees but their case is in the public interest, they can be granted a 'costs cap' to limit their financial liability. Under the current bill, costs caps will only be available at a later stage of the process, leaving individuals to labour under significant financial risk in order to start a case.
Even if you can afford a judicial review, reforms will make it easier for public bodies to escape a full examination of whether or not they behaved in accordance with law. The bill will allow defendant public bodies to claim that the fact they didn't follow their legal duties – such as consulting the public or acting without bias – did not make any difference to the outcome. If the court thinks that it's highly likely that this is the case, then the claim won't even proceed to a full hearing. Do we really want to suggest that the process by which important executive decisions are made doesn't matter? If a poorly performing public authority randomly stumbles on the right answer without process or reason, is there really no cause for judicial oversight?
As if that isn't enough, last week the government announced that fees to apply for permission to bring a judicial review will increase from £60 to £135. If granted a full hearing, you'll then have to pay an additional £680 (as opposed to the current £215). Later this month, changes to the legal aid system will mean that lawyers representing publicly funded clients will have to undertake a significant amount of work 'at risk', with payment dependent on whether the case progresses to a full hearing or not. It will become exceptionally difficult, maybe impossible, for claimants to find lawyers able to represent them in this technical process.
The topic is shot through with legal jargon and can be rendered opaque through bureaucratic process; perhaps that's why the government has been able to push through these unconstitutional and self-serving proposals without much of a fight. But the cumulative impact of these hacks and hurdles will be huge, and their importance goes far beyond the legal world. Simply put, the changes will prevent individuals and organisations from holding the state to account.
The effects of a public sector in which organisations can disregard the law safe in the knowledge that the court process is too expensive or risky for most people to use will be huge. And for those who find themselves on the wrong side of a state body that's failed to act in accordance with its legal duties, there'll be no other avenues left to take.
Sara Ogilvie is a policy officer at Liberty. Since joining Liberty in October 2013, she has worked on a range of human rights issues including policing, anti-social behaviour powers and the counter-terror response. Prior to joining Liberty Sara worked in a number of access to justice roles.
The opinions in politics.co.uk's Comment and Analysis section are those of the author and are no reflection of the views of the website or its owners.