January 26 2022

Extending the long arm of the state

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Extending the long arm of the state

Transparency, accountability, equality. These are all things that this Government says it likes and respects, writes Laura Janes. Its actions also imply that these are qualities that we can reasonably expect to see in the state: so much so that we should consider handing over the regulation of our media to it, that the police should be made accountable by elected commissioners, that when things do go wrong we can expect a full inquiry and a media expose, and even criminal sanction to hold the perpetrators of injustice to account.

  • Laura Janes is a consultant solicitor for Scott-Moncrieff & Associates LLP and the Howard League for Penal Reform. She is also the founder of Young Legal Aid Lawyers.

Equality before the law, put simply, the ability of the individual, however rich or poor to stand up to injustice and to expect to be listened to, is a fundamental principle of good governance.

But just as with one hand the state bestows layer upon layer of enhanced accountability upon those in public life, with the other it is taking steps to quickly and quietly crush possibly the most powerful weapon that you and I have as individuals to hold the state to account: judicial review.

Yesterday, following comments by Cameron and Grayling last month that judicial review was ‘pointless’ ‘bureaucratic rubbish’, and ‘bad for business’, a secret Santa consultation was issued with responses due before the end of January. It proposes to drastically cut the availability of judicial review by slashing the time frame for bringing certain cases, cutting down the powers of the Courts to correct themselves on appeal and hiking court fees to approximately four times their current level.

The consultation’s starting point is that the number of judicial reviews has increased dramatically and most of them don’t go anywhere. In fact, judicial reviews are a sign of a healthy judicial system that keeps a cautious, but open, check on the executive. In any event, the government’s starting point is misleading.

First, the government’s concerns about the sheer number of cases need to be seen in context. The vast majority of these judicial reviews concern immigration cases: there are a number of very specific reasons as to why applications in this area have increased. However, once these are taken out of the equation, the number of judicial reviews issued each year has not significantly increased.

Second, the government’s approach completely fails to appreciate the importance of the availability of judicial review both in principle and in practice for all types of cases.

As a public law specialist working mainly with vulnerable children and young people, I have only issued two judicial reviews in the past two years. In one case the matter was settled before going to trial. In the other case, it is hoped that there will be no need to go to trial now that the defendant has agreed to do precisely what was asked of it in the first place. However, in those two years I have managed to secure compliance with legal duties by local authorities and prison establishments on countless occasions by reminding them of what the law says and that if they do not comply, they could be taken to court.

Last night I spoke with two young clients who have been released by the parole board on licence. Both had been convicted of serious offences when they were children. They had done very well in prison, turning their lives around and could only be released following a decision of the parole board. Both were detained in a special unit costing approximately £100,000 per year for each young person. In these cases, the young people were owed a duty by their home local authority to help them make the transition to adulthood, to guide them through the process of safely reintegrating into their communities by making sure they had support with accommodation, budgeting, education and all the things that a reasonable parent would provide their child.

The local authorities responsible for these young people vehemently resisted providing either any assistance or the level of assistance legally required.  In both cases the local authorities only agreed to do this after being reminded not only of their legal duties but that if they failed to comply, they could be held to account by judicial review. I believe that the additional assistance from social services was instrumental to the decision of the parole board to release them. When I spoke with these young people to see how they were getting on, it was clear that they believed they now had an opportunity to make something of their lives as a result of the social services authorities accepting their legal obligations to support them. In fact, both are planning, with help, to prepare for university.

Restricting the availability of judicial review is deadly, rash and risks disarming individuals so that they no longer have the power to enforce the rule of law against the state. Judicial review (including the threat of it) is the most viable form of law enforcement on state action.

The Times reports today that, according to Policy Exchange, one in ten criminal prosecutions are abandoned at a cost of £25 million. Imagine if in response to that the government suggested changing the rules to make it harder to bring a prosecution!



One response to “Extending the long arm of the state”

  1. frednacg says:

    It was Dicey who proclaimed three distinct features of the Rule of Law, the first being that no individual ought to be subjected to wide discretionary powers for power corrupts or to use his words wide ‘discretion leads to arbitrariness’. This has been considered recently by Heuston (a loyal supporter) who reminds us that at Dicey’s time in the victorian era there was a sense of laissez faire in government in contrast to modern times with state expansion and delegation of tasks. This expansion of state delegation invariably leads to a rise in cases being examined by the appropriate ‘public authority’ and institutions subject to such review by the courts (note the Human Rights Act definition of public authority), which must surely be right for citizens must have faith and integrity in a diverse system governed by law. Yet it is noticeable given such expansion of state authority and power we have not reached a point of defining in clear terms what constitutes a ‘public body or authority’ leaving citizens at a juxtaposition and without redress or safeguards against any abuse of due process by those in authority. One might ask why that is the case for the danger is clear are we merely to be governed by the governed and not to question?

    However, it is also correct in assessing such a subject that we rail in a manage flood gates of cases from reaching our courts making their tasks difficulty by the sheer volume of tasks and risk injustice and errors, which in turn only leads to lack of faith the in system and the inability of a citizens to seek justice. This naturally leads us to the current debate about reform to the highly valued and accountable judicial review system presided by our most prominent and diverse body of legal whigs. In 1992 in a paper on Public Law it was Lord Woolf who advocated a case for an alternative in the form of a tribunal system where in ‘some situations’ (my example would be a Consumer Tribunal) they could be ‘better qualified’ than the High Court to perfom and provide a degree of ‘informality and flexibility of procedure which accord with the needs of the litigants’.

    This all sounds attractive in theory but Lord Woolfe concedes that even with such alternatives we are still faced with the prospect of having the High Court review and supervise the tribunals on appeals. The simplest solution suggested is to create a unified system of tribunals as that in Australia with the courts set to resolve only difficult issues on a point of law or public interest.

    It is therefore increasingly apparent that whatever the reform there must always be a higher form of authority with a degree of supervision, and any attempts to whittle down this system risks and creates an imbalance with a system exposed at the expense of citizens being denied due process and subject to second tier redress by state authorities damaging the very fabric of the governed authorities.

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