More hurdles in holding the State to account

The UK government once again has had a go at undermining one of the legal pillars of accountability by seeking to exert control over judicial reviews – a process which allows for legal challenge of the decisions of public bodies.
The Criminal Justice and Courts Bill was debated in the House of Lords today and three key amendments were introduced which put a halt to the proposed restriction of access to and limiting the findings of judicial review proceedings.

The first amendment reversed government plans which presumed within the draft legislation that individuals would fund the cost of judicial review proceedings themselves. This would immediately create an inequality of arms since without the possibility of access to legal aid, a significant percentage of applicants, despite the merit of their cases, would simply not take the risk that the judgement would go against them. They simply would not be able to match the financial and legal resources available to public bodies and government Departments.

A second amendment struck down a proposal that applications for judicial review could be denied if the defendant (i.e. the public body or government Department) could show that even if their action was unlawful, it made no difference to the applicant’s circumstances. The implications of such a clause in legislation would be, in essence, to endorse illegal actions by agencies of the state.

A third amendment which removed a clause that required applicants to provide detailed financial information was also passed. The three amendments were proposed by crossbench Peer Lord Pannick.

The position of government was supported amongst others by Lord Tebitt who argued that Parliament should uphold laws rather than the “unelected dictatorship” of the judiciary. One wonders with a statement like that if Lord Tebitt actually knows how a common law system operates.

What is most disturbing is the seemingly concerted efforts of the current British government to curtail any mechanisms that might act as a brake or a check on state abuses of power. I wrote here on Slugger the other day about concerns that the British government was seeking to devolve its liability for conflict-related human rights abuses to the Assembly parties. In tandem with that, it has threatened to derogate from the European Convention on Human Rights and not take cognisance of European Court of Human Rights Judgements in UK law and to repeal the Human Rights Act. It has stripped out legal aid provision, once again undermining the principle of fair and equitable access to justice.

The Bill has been returned to the House of Commons for further discussion. Plans to give the Lord Chancellor the power to redefine what is deemed to be “public interest” will form a large part of that debate. I would expect strong contributions from local Members of Parliament in that debate, not least given the recent widespread cross-party support for a Kincora Inquiry and the public interest elements of that.

  • Michael-Henry Mcivor

    Lord Tebitt- ” Parliament should uphold laws rather than the unelected dictatorship of the Judiciary “- So says the unelected Lord Tebitt-

    Looks like they are going after legal aid next- They can’t afford to bomb Iraq and allow the people their rights at the same time-

  • Patricia

    I wrote here on Slugger the other day about concerns that the British government was seeking to devolve its liability for conflict-related human rights abuses to the Assembly parties.

    Alternatively, responsibility for decisions on human rights abuses was devolved when responsibility for policing and justice was devolved. Isn’t that the argument against the decision on the Kincora inquiry?

    As for your highlighted amendments to a Bill in progress through Parliament…

    Funding the cost of judicial review proceedings would, at least, introduce an element of risk which would deter frivolous proceedings. I agree with your point on the potential imbalance of resources, but there is a balance to be struck.

    The second amendment obviously seeks to restrict activist bodies from opposing actions of the government per se. There is a logic to it. But we’ll see if it survives the parliamentary process.

    You also seem to suggest that all three amendment were passed.

    A third amendment which removed a clause that required applicants to provide detailed financial information was also passed.

    In which case, shouldn’t the post title more accurately read, “More hurdles [removed] in holding the State to account”

  • “They simply would not be able to match the financial and legal resources available to public bodies and government Departments.”

    Not necessarily. I work in a cash-strapped local authority. We often have individuals, pressure groups and private organisations threatening JR’s against us. They know, and we know, that as a local authority we simply don’t have the resources to pay for the legal costs of defending against a JR. By threatening the JR option, they get to prevent us from implementing measures that fully accord with the policies of the Authority, which were, themselves, agreed through a fully open and democratic process.

    “A second amendment struck down a proposal that applications for judicial review could be denied if the defendant (i.e. the public body or government Department) could show that even if their action was unlawful, it made no difference to the applicant’s circumstances. The implications of such a clause in legislation would be, in essence, to endorse illegal actions by agencies of the state.”

    Most of the instances in which I see JR’s being threatened are absolutely nothing to do with “illegal actions by agencies of the state.” Typically in the planning sphere the JR alleges some sort of lapse in process – a poor or rushed consultation process, for example…which may not actually have made any difference to the applicant’s circumstances. So this seems sensible to me.

    I have to say that from my perspective these seem to be sensible measures. That said, perhaps a distinction should be drawn between use of JR’s in the planning process and use of JR’s in Criminal or Human Rights cases.

  • SeaanUiNeill

    I have found the decisions of planning frequently capricious in application. Recently I supported a neighbour in opposing a grant of planning where a sizable number of published policy crireria had been flouted. They were treated in a high handed way when they wrote to the DOE minister, but could not afford a judicial review.

    However, if they could have run to a JR the decision would almost certainly have been overturned. The JR process is expensive (an already present inhibition for its use), but it is a very last safeguard for situations where “illegal actions by agencies of the state” are taking place every day. And who is to decide if a decision “no difference to the applicant’s circumstances”? This can in these circumstances be given a very narrow legal definition that entirely bypasses simple logic for most applicants.

    But why am I saying this? The shift to rule by decree in planning is well established already, and this is simply one stage more in the process of a growing powerlesness for ordinary people who wish to protect their quality of life in the face of uncaring “masters.

  • Old Mortality

    But it’s about human rights: the worthy lawyers will happily do it for nothing, won’t they?

  • Fair enough if you feel that an authority is acting in contravention of its own policies – JR is probably the route to go.

    My post was just an attempt to point out that there is more than one side to this story – and that some amendments to the system may be helpful to stop it from being abused.

    Regarding the “rule by decree in planning” – don’t know if it’s as simple as that. Local authorities in the UK are under constant pressure from the current government to throw out any planning restrictions at all. At the same time, use of social media is leading to formerly isolated activists coalescing into organised pressure groups, who can bring real pressure to bear on planning decisions. Then there’s pressure from local politicians, who will often take on a cause simply to shore up their vote, rather than because it reflects council policy. The planners that I know are caught in the middle of all of this, not an easy place to be.

  • SeaanUiNeill

    One of the big problems I face in life is that I can usually empathise with the other side of an argument. Having had some years of fighting a lot of passed PPS21 farm/housing applications that are bizarrely outside the guidelines, I can see all too clearly the problem of planners pressed in application after application by someone (usually not actually farming) with a farm number who has a wee patch of land with nothing to “cluster” to, demanding that they are entitled to transform simple farmland into a small goldmine.

    They just go on and on, use precedents from other “incorrect” decisions and threaten the planner with the PAC. There is always more than one side to the story, and the planners lot is far from a happy one, caught in the middle. But almost every problem you mention has its shadow in those attempting to press for a stretching of planning policy. I’ve been verbally abused at a council planning meeting by local councillors for opposing the planning application of a good living person, a lay preacher, who went to their church. That he was lying in every respect in his application did not seem to qualify his right to build right in front of a vulnerable neighbour with serious health problems! So the pressure is not only from those attempting to stop unnecessary development.

    Law and planning policy, no matter how carefully drafted, will generally harm someone in their application, and right of appeal is limited. The expense of a judicial review of sometimes arbitrary decisions is sufficient constraint usually to discourage its flippant use. I really cannot see how removing it will do other than encourage bad decisions, as it is the one thing open to those opposing planning decisions, where the balance for granting planning permission is already very heavily weighed in favour of the applicant. Appeal to the PAC is only open to those seeking planning permission, those who oppose applications simply have to accept the department’s decision or go expensively to a JR. Take this away and there is no serious constraint on anyone granting permission, as their decision will have no longer have a proper oversight for anyone adversely effected.

  • Croiteir

    Yep – and Tesco for example will feed the solicitors for nothing

  • SeaanUiNeill

    They probably will soon. With current sales trends it may be the only way they will be able to move their stock………..