Thursday, December 2

Judicial review is a right of the people. I will fight this government’s attempts to destroy it | David davis


JJudicial review is a cornerstone of British democracy. It empowers ordinary people to challenge the decisions made by public bodies. Whether it is the central government or local authorities, ordinary people hold legislators accountable. This is a small, but important, check on the balance of power in our democracy.

But governments do not like judicial review for this very reason.

Given the government’s recent high-profile defeats at the hands of judicial review, its plans to stop it should come as no surprise.

First, Gina Miller questioned the government’s position that Article 50 could be activated without parliamentary authorization. It was a challenge that I think she was right to bring, but it caused the government several headaches. More recently, the 2019 Supreme Court case on the extension of parliament also resulted in political difficulties.

These are the great and spectacular defeats that the government has faced recently. But on a daily basis, judicial reviews against various branches of government are heard in courts across the UK. And often the state is on the losing end of the argument.

The government plans to restrict the use of judicial review in an obvious attempt to avoid accountability. Such attempts to consolidate power are deeply conservative and forget that, in a society governed by the rule of law, the government does not always get its way.

Plans to restrict judicial review are certainly not new. In 2012, we saw David Cameron try to restrict its use by increasing fees and imposing stricter time limits on requests. And in 2000, the Tony Blair government included in the law a clause to prevent judges from examining the investigatory powers court.

The 2019 conservative manifesto promised “access to justice for ordinary people” and “to ensure that judicial review is available to protect people’s rights against a dominant state.” But proposals to restrict the use of judicial review do the exact opposite of that. They tip the scales of law in favor of the powerful.

The use of judicial reviews extends beyond campaign groups challenging the government on immigration or the small details of Brexit. Give a voice to the victims.

When it was announced that serial rapist John Worboys would be released from prison, his victims underwent a judicial review to challenge the Board of Parole’s decision. The superior court ruled that the Parole Board was wrong and that Worboys should not be released. Today he remains behind bars.

Judicial review does more than give victims a voice, it can also give them justice. Susan Nicholson was tragically murdered by her partner, Robert Trigg, in 2011, although an investigation initially ruled that the death was accidental. When it was later revealed that Trigg had a previous partner who had died in similar circumstances and had a significant history of violence against women, Nicholson’s parents used court review to argue in favor of an investigation into her death, eventually led to justice.

But beyond crime and justice, judicial review also applies to people in matters that affect everyday life.

For example, when a seven-year-old boy with special educational needs had his care plan severely and unnecessarily cut short without prior notice from the local authority, his family was able to judicially review this decision. Through this, that child was able to access the education to which he was entitled by law.

The government is also seeking to abolish what are known as Cart judicial reviews. These refer to when the higher court can, in exceptional circumstances, review decisions in which permission to appeal has been denied. Ultimately, they are used to correct fundamental and dangerous errors in the law.

Take, for example, the case of a woman who had been trafficked to the UK to work as a domestic worker in a diplomatic house. His asylum application was rejected and he was denied the right to appeal that decision. She filed a judicial review of Cart, which ultimately resulted in a U-turn and her appeal was allowed. After that, the Interior Ministry relented and the woman was granted refugee status.

If the government had its way and Cart’s court reviews were abolished, this woman would have been denied justice. She would have faced being returned to a country where there was a serious risk that she would be trafficked again.

The government wants to abolish Cart’s court reviews as, in its view, they are often expensive and unsuccessful. But its real cost is between £ 300,000 and £ 400,000 a year. A small sum for the government. In fact, it’s the same thing the government spent adding to its private art collection in 2019-20.

Its success rate has also been questioned. The Independent Review of Administrative Law said the success rate of Cart’s court reviews was about 0.22%. However, a more detailed analysis shows that this is wildly incorrect. The success of Cart’s court reviews is more like 5.7%, much higher than the previous government analysis.

While the attack on judicial review is a concerning attack on our legal system, it is only part of the picture. The government intends this bill to serve as a model for further attempts to restrict the functioning of the courts in the UK.

It is attempting to abolish Cart’s court reviews through a mechanism known as a kickback clause. Essentially, this is the government that legislates to deny a court’s jurisdiction in a given matter. Left unchecked, the use of these impeachment clauses could unleash the government to designate certain decisions that it has made, or the use of certain powers that it grants itself, to be undisputed in court.

And the government, through this bill, wants to establish a framework on how impeachment clauses can be applied to other areas in future legislation. This clearly leaves the door open for more removal clauses to be created that separate the courts from decisions on matters such as labor courts or social security. It doesn’t take a wild imagination to envision a future government, plagued by constant losses in the courts on welfare matters, to suddenly legislate to eliminate the court’s vital oversight functions in such decisions.

As a conservative party, we are proud of our heritage that upholds individual liberty alongside a fair and balanced rule of law – judicial review is central to these twin ideological pillars. It would be wrong for this government to sacrifice these virtues on the altar of power, and I will be at the forefront of any battle to protect this important legal tool.


www.theguardian.com

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