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Constitutional Assault: attack on judicial review

Will new restrictions on Judicial Review prevent campaigners from following in the footsteps of Lewisham and Gloucestershire NHS campaigners, in overturning hospital cuts and privatisations?

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Jamie Beagent is a partner in the human rights department who specialises in judicial review and public law. Follow Jamie on @jamiebeagent.

Amid the unprecedented cuts to welfare and public services overseen by this government, it is perhaps easy to overlook the concerted attack on one of this country’s key freedoms; a freedom which underpins the fragile constitutional balance in a state with an unwritten constitution.

Judicial Review is one of the key checks and balances on government power.  It is the means by which the Courts hold public bodies to account, scrutinising their actions (and omissions), ensuring that too they are bound by the rules and laws laid down by parliament and preventing arbitrary abuse of power.

This week we saw a high profile example of judicial review in action in the successful challenge brought by the Save Lewisham Hospital Campaign against the decision to substantially cut services and close departments at Lewisham Hospital.  The High Court found that the Secretary of State for Health, Jeremy Hunt MP, had acted outside his powers and therefore unlawfully in taking this decision.

Any citizen, organisation or corporation can bring an application for judicial review in respect of any act or omission of the government, provided only that they have “sufficient interest” in the act in question.  The Courts are then bound to consider the citizen’s claim of illegality in accordance with the law as it applies.  Where illegality is found, the Courts can quash the decisions of the government, injunct the government from certain actions and compel it to take certain steps.

Unsurprisingly, it is the natural instinct of the executive to react against judicial review and the potential for interference with its wishes and decisions.  However, until recently, governments have shied away from attempting to limit the scope and availability of judicial review in any significant way.  Governments of every colour have recognised that, uncomfortable and inconvenient as such scrutiny is, it is a vital component in the constitutional balance of the nation.

That is until now.  What makes the present attack on judicial review so surprising is that this is a government comprised of a coalition between Liberals and Tories who were brought together in significant part by the perceived authoritarianism of the preceding Labour administration.  The arrival of Chris Grayling as Secretary of State for Justice, replacing the more liberally-minded Ken Clarke, has seen a concerted effort to neuter the power of judicial review and immunise government from the inconvenience of being held to account by the citizenry.

The latest manifestation of this assault on the rule of law comes with Chris Grayling’s announcement that he intends to restrict the “sufficient interest” test to one of a “direct link” to the policy or decision under challenge.  It is far from clear how such a test would be framed or would operate but the intention is clear – to restrict the ability of citizens to challenge the government through judicial review.  There must be serious questions marks as to whether, following these changes, a successful challenge like the Save Lewisham Hospital Campaign could have been brought.

But this announcement is not an isolated knee-jerk reaction by the government to another embarrassing Court defeat, it is the latest in a litany of changes and proposals introduced in the last few months.  As well as direct changes to the long-established rules governing judicial review, there are more insidious attacks through changes to the Legal Aid system.

The following changes have already been introduced:

(1) Reducing the time limits for bringing judicial review for certain cases  

In planning cases the time limit has been reduced from 3 months to 6 weeks; in procurement cases from 3 months to 4 weeks.

The justification for these dramatic reductions in timescales is that they reflect time limits in related statutory appeals which may be brought by developers and corporations.

However, that does not take account of the fact that the ordinary citizen will not have been involved so intimately in the process and will certainly not have the same ready access to professional advisors and lawyers.  In reality, this change is simply an attempt to make it harder for citizens to bring judicial reviews.

Notable cases which would have fallen foul of these new rules include the successful challenge brought by Michael Lloyd against Gloucestershire Primary Care Trust against its attempt to outsource community health services and district hospitals.

(2) Removing the right to a hearing in some cases

Judicial review is a two stage process: the Court first filters cases by considering them on paper, then, if it considers the claim to be arguable it is granted ‘permission’ to proceed to a full hearing.  If permission is refused at this stage then claimant may ask for the matter to be reviewed at a short hearing before the Court.  If permission is then granted (which happens in a significant number of cases) the matter proceeds to a full hearing in the normal way. Some cases initially refused at the paper stage have gone on to succeed in a full hearing.

However, recent changes mean that if a Judge considering the papers decides that a claim is “totally without merit” then the claimant will now lose his right to have the matter reconsidered at an oral hearing.

That might be considered to be a reasonable and proportionate means by which prevent court time being taken up by hopeless cases.  However, Judges make mistakes (and cases pleaded on the papers are sometimes not put particularly well).  The fact that claims are frequently refused permission on the papers but granted permission following an oral hearing demonstrates the importance of the oral permission stage in preventing injustice.

Inevitably there will now be good cases which will be denied a hearing.

(3) Removal of Legal Aid from significant areas of legal work

The Legal Aid, Sentencing and Punishment of Offenders Act 2012 introduced fundamental reforms to Legal Aid as part of the government’s package of cuts.  As a consequence large areas of law were taken out of the scope of legal aid including:  immigration, education, welfare benefits and debt.   In introducing these cuts the government were at pains to stress the importance of retaining judicial review within the scope of legal aid given its constitutional importance.

However since large numbers of vulnerable people will be denied basic legal advice, unlawful acts of public authorities will go un-noticed and unchecked.  Furthermore, certain specific immigration and asylum judicial reviews were expressly removed from the scope of legal aid.

The government is already considering the following changes:

(1) A significant increase in Court Fees for Judicial Review.

Until now Court fees for bringing a judicial review were kept deliberately low in recognition of the constitutional importance of access to the Courts in judicial review (presently it costs £60 to start a judicial review and a further £215 to be paid when a claim proceeds beyond the paper stage).  The government now propose that the fees should be increased to meet the actual costs of the courts in handling a judicial review.  This is likely to see an increase in fees to many hundreds of pounds.

(2) No payment from Legal Aid unless a case is expressly granted permission.  

This proposal threatens the economic viability of law firms which act for claimants in judicial review since the majority of judicial review cases are settled (usually favourably) before the permission stage is even reached.

(3) Removal of legal aid from foreigners and prisoners.

A further direct attack on unpopular minorities to prevent their ability to access the Courts in judicial review.

The government has repeatedly sought to justify these changes through un-evidenced assertions that judicial review is a hindrance to economic growth and that right to judicial review is “abused”.   These assertions have been backed up only with political rhetoric and the misleading use of statistics which have been thoroughly debunked by academic commentators.

Taken together these changes represent one of the most illiberal policy drives by a British government in recent history.   Make no mistake, these changes are not about saving money or addressing “abuse” of the judicial review process.  They are an ideological attack on the ability of citizens to hold our government to account which threaten lasting damage to the rule of law in this country.

This blog was originally published in OurNHS www.opendemocracy.net/ournhs

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