Tuesday, 28 October 2014

It is not just human rights that the government dislikes .....

“Ministers and public officers at all levels must exercise the powers conferred on them in good faith, fairly, for the purpose for which the powers were conferred, without exceeding the limits of such powers and not unreasonably” - Lord Bingham (The Rule of Law)

It is not just all things "Europe" in the cross-hairs of the present government.  An important bit of the common law has also come under attack.  Today, it is called Judicial Review a term which came into use following some important changes to procedure introduced in 1977.  The common law had developed the principle that all public authorities (including the government itself) are liable to have the lawfulness of their acts and decisions tested before the courts.  The power of judicial review rests with the High Court ( and, to some extent, with the Upper Tribunal).  Decisions can be appealed to the Court of Appeal and Supreme Court.  At the heart of judicial review lies the notion of the rule of law so that official decision-makers possess only those powers bestowed on them by the law.  It is the independent judiciary who interpret the law though Parliament has the final say on the law itself.

The Courts and Crime Bill - currently before Parliament - seeks to place restrictions on access to judicial review.   An article in Politics.co.uk put the matter this way:

"Part four of the criminal justice and courts bill  (clauses 70-78) will restrict judicial review to only the richest people in society. It will pile on costs in the pre-permission stage, raise the level at which permission is granted and make it much harder for charities and other experts to get involved. As usual, the coalition does not ban things – it just prices them out of the reach of ordinary people.

Chris Grayling says he's been forced to make the move to prevent "left wing" campaigners and greedy lawyers frustrating government initiatives."

It cannot be doubted that many a plan of the government or other public decision-making authority has found itself being tested in the courts and, no doubt, the process can be an irritant to those anxious to push various schemes forward with minimal delay.  Nevertheless, the rule of law is of fundamental democratic importance and the position of individuals affected by official plans must be properly respected.  It is here where judicial review seeks to find a balance.  The judges are not there to substitute their own policy for that of Ministers but the judges are there to uphold due process and legality.

On 27th October, in the House of Lords, the government suffered defeats over its plans to reform judicial review - The Guardian 27th October - House of Lords votes against Grayling's plans to restrict judicial review access.  The debate may be read via Parliament's website.

As Lord Woolf said in the debate - "Judicial review deals with the public’s rights. In those circumstances, I suggest that if we are not going to fall into the trap identified by Lord Hailsham in his Dimbleby lecture of 1976 of having an elective dictatorship in this country, we have to safeguard judicial review."

This Bill passed the House of Commons in June 2014.  Upon its eventual return to the Commons it would not be surprising if the government sought to overturn the Lords amendments.  For that to come about would be a very dark day for the rule of law in this country.   The succinct words of Lord Bingham - quoted at the start of this post - tell us precisely why.

Further reading:

UK Human Rights blog 28th October - Three strikes and out?  Major defeats for government judicial review reform plans in Lords

1 comment:

  1. The irony here is that judicial review has often provided 'effective remedy' domestically thereby removing necessity for people to apply to the ECtHR.