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Under attack: Human rights and judicial review

Some people want to scrap the Human Rights Act but many more respect and support its positive contribution to society

Challenging actions of the state using judicial review
Merry is a partner in the human rights department.  She has a particular interest in using the law to protect children, vulnerable adults and patients.  She tweets as @merryvarney
The Human Rights Act, everyone has heard about it. Cameron wants to abolish it. Some say it is being abused by and protects terrorists, criminals and illegal immigrants. 

Many, however, remain fervent in their support of it and its positive contribution to society and the message it sends globally that we have enshrined an international human rights Convention into UK law.

For the time being at least we can hold our heads up high and condemn other country’s Governments for their lack of human rights safe in the knowledge that we not only talk the talk, but also walk the walk.

But what about Judicial Review - ask people their views on that issue and the debate isn't quite the same; for many this legalistic term means nothing to them despite being one of the key ways in which individuals have to protect themselves from arbitrary or unlawful actions of the state.

Judicial review is suing the Government or a public authority - not for money, but to challenge unreasonable policies, irrational decisions, failures to act or actions outside their legal, democratic remit. 

Many people don’t even know this is possible.

You need permission of the Court to pursue one. You have to find a 'public law lawyer'  to represent you. You have to find funding; you have to exhaust any other avenues of redress (complaints, ombudsmen etc); you have to give the defendant notice of your challenge and a chance to respond and you have to do ALL of that in three months or less. 

So why is it being made even less accessible by this Government, which is currently trying to restrict who can bring such a legal case and how much it costs them?

Because they do not like having their decisions challenged.

They claim they want to stop public money being wasted on frivolous litigation; but the Court already has its own filter - the permission stage. 

The Court can also order costs against litigants who pursue unsuccessful JRs. 

JR is already inaccessible to many and restricting access further will leave us all more exposed to being unfairly and unreasonably treated by bodies spending our taxes, who will return to being less transparent and accountable. 

Combined with the HRA, JR has after all delivered some results that have benefitted vulnerable groups and some that may even benefit us all. 

So if you are wondering where you stand, ask yourself whether any of these have benefitted or may benefit you, or someone you care about:
 
  • A recent threat of judicial review, successfully prevented 10s of children with special education needs unilaterally having their education provision slashed by 40% without notice or alternative support being offered.
  • A judicial review confirmed that patients should receive treatments and services from their local Clinical Commissioning Groups that have been recommended by the National Institute for Health and Care Excellence (NICE), the publicly funded  body charged with recommending which treatments benefit patients and are cost effective for provision on the NHS, unless the CCG has a very good reason for not doing so. (R (Rose) v Thanet CCG [2014] EWHC 1182 (Admin)).
  • A judicial review prevented the closure of services at Lewisham Hospital, which was a high achieving, popular hospital not in any financial difficulty. (R (Lewisham Council and another) v SS for Health & the TSA [2013] EWHC 2329 (Admin)).
  • A human rights based judicial review confirmed the right of patients to be informed and consulted before a doctor decides to put a DNR, do not resuscitate, order on you or your loved one's medical notes. ( R(Tracey) v Cambridge University Hospitals NHS Trust [2014] EWCA Civ 822).
  • A human rights based judicial review confirmed the right of healthcare workers to be given a chance to respond to allegations made against them before being blacklisted by the Government (R (Wright & others) v Secretary of State for Health [2009] UKHL 3)

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