Every government needs checks and balances to prevent abuse of power, and judicial review can be one of the most powerful of these – that’s why the Conservative-led Coalition Government is trying to withhold it from ordinary people.
Without judicial review, Cait Reilly would not have been able to challenge the government’s decision to dock her Jobseeker’s Allowance after she refused to take part in a workfare scheme. The review found the government at fault and Iain Duncan Smith had to push a hastily cobbled-together retrospective law through Parliament to make its actions legal again – until the High Court ruled in July that this law was not legal either.
Mrs Justice Lang said retrospective application of the Jobseekers (Back to Work Schemes) Act 2013 conflicted with the European Convention on Human Rights and “interfered with the right to a fair trial” of all those affected.
It meant anyone who appealed against a benefit sanction on the basis of the previous decision would be entitled to win their appeals and be repaid the withheld benefits, with the government payout expected to be as high as £130 million.
That could not have been possible without judicial review.
There has been a judicial review of government policy regarding claimants of Employment and Support Allowance who have mental health issues.
A judicial review has been launched against the introduction of fees for workers seeking employment tribunals.
The list goes on. Clearly, it is a system that works.
But Chris Grayling – one of David Cameron’s more evil ministers, with a record of harm against jobseekers and the disabled from his time at the DWP – made sure that his plans to cover up government crimes by making access to judicial review too expensive for ordinary people got back on track yesterday (December 1), after the House of Lords amended his proposals – in order to prevent abuse.
The House of Commons voted by margins of 66, 36 and 33 to remove the amendments and instead supported a concession offered by Grayling last week, in which interveners would be liable for costs if their evidence and representations have not been ‘of significant assistance’ to the court. Costs would also be imposed if the intervener has behaved ‘unreasonably’ and if a significant part of their evidence is on matters that are not necessary for the court to consider.
Grayling added to his own reputation as an evil-minded dullard when he claimed to be “baffled” by opposition to his Bill, saying it would stop challenges being made on “technicalities”. He said: “If you’re a government minister, you’re confronted by the prospect of judicial review virtually every week”.
He claimed his amendment would allow parties to continue to bring justified judicial reviews, but prevent those made simply to delay decisions made legitimately by parliament: “If a group can find a clever enough lawyer, almost any government decision can be judicially reviewed.”
This is clearly nonsense. The entire point of the findings of the judicial reviews mentioned above was to stop the government bringing in changes that were not only unneeded but actually harmful to the country and the public good. Those are not challenges made on ‘technicalities’ – but they could not have been made under the conditions he intends to impose.
According to the Law Gazette, “Shadow justice minister Andy Slaughter said the attempt to impose retrospective costs created ‘impossible hurdles’ for charities and not-for-profit organisations attempting to intervene on someone’s behalf.
“He added: ‘In rejecting the lords amendments, the Tory-led government is savagely attacking the rights of the individual citizen to take on the state in court, opening the door for unlawful governments to avoid scrutiny.’”
Andy Slaughter and Jeremy Beecham added, in the New Statesman: “By steamrollering through changes to judicial review, they are seeking to insulate themselves from challenge, and restrict the ability of the British people to hold to account future governments that break the law.
“The fettering of judicial discretion has been a recurring feature of the government’s numerous attempts to reshape our justice system, a curious way of building up to the celebrations of the 800th anniversary of Magna Carta next year.”
They added – for the record – that the Criminal Justice and Courts Bill (which includes the proposed changes to judicial review) was never a part of the Coalition Agreement.
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