Injudicious review

JeremyBeecham.jpgJeremy Beecham on the latest nasty plans emerging from the Lord Chancellor’s department

The Coalition is in the process of substantially undermining what has become one of the cornerstones of our system of democratic and accountable governance – judicial review (JR). The process whereby citizens can question the lawfulness of decisions made by the government or other public bodies. They have to apply to the Court for permission to bring a case. If granted, the Court will hear both sides and determine whether the policy in question was lawfully made and did not conflict with legal rights that have to be observed under national law or international law.

The current government’s onslaught on legal aid began with the Legal Aid, Sentencing and Punishment of Offenders (LASPO) Bill, and the Act that it became. One consequence of which, is that legal aid is now not available for the crucial preliminary stage of obtaining permission to proceed with an application for JR – a process which must be launched within a very short time scale after the relevant decision is made.

Today in the Lords, the Criminal Justice and Courts Bill has its final day of Committee, with a focus on JR. Among other things, the Bill seeks to narrow judicial discretion, threaten interested bodies who intervene in a case with liability for costs, raise the criteria of success before permission to proceed can be granted, and demand the disclosure of what financial resources might be available to applicants as well as those who might support them. The justification for all of this is an alleged massive rise in the number of JR cases. In fact, and taking into account the transfer to the tribunal system of immigration cases that used to be heard in the High Court, the number – at 366 – has increased by only 21% in 13 years.

The nastiest change that the government is pursuing, the introduction of a residence test for legal aid, would apply to JR and most other areas of law. This would apply to everybody over the age of one year’s old (and yes you read that right – over the age of one year’s old) who can’t prove a period of continuous residence in the UK of at least twelve months at some point.

The Joint Committee on Human Rights concluded that this was in breach of the UN Convention on the Rights of the Child because it would prevent children from having effective legal representation in cases which affect them. The JCHR also noted that the government had no information as to the number of children who might be affected, or the savings that would accrue by imposing the test.

The High Court has recently ruled that the proposal, allegedly applying the provisions of the LASPO Act based on need, introduced a criterion which had nothing to do with need (i.e. residence) and was therefore unlawful. 

Appeal Court judge Sir Alan Moses described the test as discriminatory and in a damning passage referred to remarks made by the Lord Chancellor, Chris Grayling during the case and pending judgement: “Unrestrained by any courtesy to his opponents or even by the customary caution to be expected while the court considers its judgement and unmindful of the independent advocate’s appreciation that that it is usually more persuasive to attempt to kick the ball than your opponent’s shins”. Grayling had said: “most right-minded people think it’s wrong that overseas nationals should ever have been able to use our legal aid fund anyway and yes you’ve guessed it another group of left wing lawyers has taken us to court”.

To this characteristic blast on the political dog whistle Sir Alan responded with an extract from a 40 year old judgement of Lord Scarman, “every person with the jurisdiction enjoys the equal protection of our laws. There is no distinction between British nationals and others. He who is subject to English law is entitled to its protection”.

Grayling and others in their perennial search for votes from the right are, of course appealing. A less appealing prospect than this government, and this Lord Chancellor remaining in office and continuing to dismantle our system of justice is hard to imagine.

Lord Jeremy Beecham is Shadow Justice Minister in the House of Lords

Published 30th June 2014

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