Back in December, the Court of Appeal’s most senior judge, Master of the Rolls Lord Dyson, gave a lecture entitled “Is Judicial Review a Threat to Democracy?” His very firm conclusion was that it is not.
To read recent reports in the press, however, that Prime Minister David Cameron has ordered a ‘crack down’ on ‘spurious’ legal claims against the British army, you’d think that it was.
In the Prime Minister’s statement issued last Friday, he stated that there is ‘now an (legal) industry’ trying to profit from spurious claims against UK military personnel and that the ‘government will protect them from being hounded by lawyers over claims that are totally without foundation’.
That statement came only two weeks after Conservative MP Stewart Jackson – speaking in the House of Commons under the defamation-protecting cloak of parliamentary privilege – had attacked law firms Leigh Day and Public Interest Lawyers – by name – as ‘immoral, thieving, ambulance chasing lawyers’. Coincidentally, Leigh Day had also been referred to the Solicitors’ Disciplinary Tribunal only the day before.
At first sight, these statements made by the Prime Minister, Stewart Jackson MP and others, appear to be focussed solely on a narrow, recent issue of legal claims against the British army. But they are not. The attacks on Leigh Day and other public law firms, who have helped clients to bring legal actions against the Government and/or Government agents, are just the latest in a series of subtle, drip-drip statements, policy announcements and legislative changes that aim to challenge the very idea that anyone – including wronged British citizens – should be allowed to bring legal challenges against the Government.
We saw an example of this when the former Justice Secretary, Chris Grayling, attempted to attack judicial review as a ‘promotional tool for countless Left-wing campaigners’ rather than recognising it for what it really is – in the words of Lord Dyson MR ‘a valuable tool for the safeguarding of democracy because it is an ‘effective means’ of ensuring that executive public bodies comply with their statutory obligations and do not act illegally’.
We saw another example of this when the Government introduced new ‘no permission, no payment’ rules for judicial review in 2014. As the Public Law Project argued at the time, the introduction of no permission, no payment would impact on vulnerable people dependent on legal aid, who would ‘not be able to find lawyers willing or able to take on meritorious cases’. But as we have seen from Chris Grayling’s, and now the Prime Minister’s recent statements, one could argue that that’s exactly what the Government wanted?
However, it is not only ordinary people’s ability to bring public law challenges and public law legal professionals that are now being attacked by the executive of the British state. The independence of the judiciary and the fundamental constitutional principle that no one should be a judge in their own case is also being attacked. We see an example of this in the new Immigration Bill currently winding its way through Parliament. That bill contains a draft provision that if a first-tier immigration tribunal makes a decision to grant a person bail – but the Home Secretary disagrees – then she can override the tribunal’s decision.
As the House of Lords Constitution Committee stated, in its report on the Bill published on January 11, ‘the constitutional question arises whether it is compatible with the rule of law for a member of the executive to be given the authority to override the decision of an independent judicial body’.
Certainly, the recent UK Supreme Court judgment of Evans v Attorney General, which ruled that Government Ministers had no right to veto an independent Freedom of Information Tribunal’s decision to order the release of Prince Charles’ letters, is authoritative legal backing for the Constitution Committee’s position.
On the face of it, it appears that we are now living through a time where our government is intent on removing our right to access to justice, removing the lawyers who help us to access it and – if neither of those two things work – overruling the independent judges and courts that make legal decisions in our favour.
It is ironic, therefore, that this week, Prime Minister David Cameron will welcome the surviving former members of the African National Congress who were tried with Nelson Mandela in Rivonia in 1963 and will grant them the freedom of the City of London.
Britain is indeed right to celebrate these men – brave civil rights’ activists who fought for racial equality and freedom in South Africa – and it is indeed pleasing to also see the Prime Minister commend the men’s formidable ANC lawyers who will also be accompanying them on the trip.
Would David Cameron object to these men, victims of the most horrendous state torture, being able to gain legal redress against their state, I wonder?
It would be nice if one day our Prime Minister would consider extending some of the warm wishes and, no doubt, many words of deep admiration that he will share about the ANC civil rights campaigners – and their lawyers – to modern-day UK based human rights campaigners – and their lawyers.
Miranda is a commissioning editor on www.thejusticegap.com. She tweets at @MirandaGrell