The House of Lords has been providing some resistance, but already our legal system appears to have been badly damaged.
Fears that the independence of the judiciary was under threat were expressed in 2005 when Tony Blair rolled the jobs of Justice Secretary and Lord Chancellor together – the injustice of the Criminal Courts and Justice Act 2014/5 is the materialisation of that fear. When you give politicians too much control of the legal system they abuse that power. As I write we are waiting to see if Chris Grayling, the legal overlord, will concede two points to the House of Lords and allow Judges to retain some discretion to allow the public to challenge the Government’s decisions – otherwise Government may give itself the authority to carefully break the law.
There are two systems that hold politicians to account – democracy and law. Democracy ultimately allows the public to vote out a politician who they do not feel is representing them, but along the way other politicians and their constituents act as further checks and balances on the power of the executive Government; this operates via parliamentary questions, cross-party committees, debates and votes. However, when a government has a majourity in the Commons it is in an immensely powerful position and of course all power can be abused. This is where the principle that no-one is above the law kicks in. Decision making should be transparent and decisions should not be illegal. We have a sophisticated legal framework stretching from international conventions to common law that has developed to enable the public to hold the Government, national and local, to account, when they take decisions that are illegal or unjust.
When we think that government has erred, the public, including environmental charities turn to the Courts, and use the process of Judicial Review to determine the truth. It is not easy to win a Judicial Review, but it happens often enough to ensure that our system of Government is constantly improved and kept in good order by its decisions being subject to judicial scrutiny, or at least being at risk of judicial scrutiny.
It is this scrutiny that is cruelty under attack from the Government, with the Justice Secretary and Lord Chancellor Chris Grayling making their motivations absolutely clear in an article in the Daily Mail in 2013 “[Judicial Review] is not a promotional tool for countless Left-wing campaigners………Britain cannot afford to allow a culture of Left-wing-dominated, single-issue activism to hold back our country”.
Lord Chancellor deviates from history
To many who are familiar with the legal system it is shocking to hear the Lord Chancellor attack legal process with such a clearly political axe. The Lord Chancellor is by law responsible for the efficient functioning and independence of the courts. Until changed by Tony Blair in 2005 the Lord Chancellor was also the presiding officer of the House of Lords, the head of the judiciary in England and Wales, and the presiding judge of the Chancery Division of the High Court of Justice. It is a post that was first appointed in the 600s and has been the bedrock of the independence of the judiciary from politics since 1280 when Edward I delegated his role as head of the Royal Courts to the post. The Lord Chancellor is usually a highly respected and experienced lawyer or Law Lord, indeed Chris Grayling is the first non-lawyer appointed to the post since 1673. Many people fear that the 2005 changes to the Lord Chancellor role have weakened the judiciary – concerns that were expressed at the time and that this unjust legislation is a symptom of a repositioning of power, with the balance moving further towards the Government and executive.
Criminal Courts and Justice Bill – changing democracy
So what are the details of the changes? Well, Parliament (Lords and Commons) has already agreed that in the future it will be harder for Judicial Review applicants to benefit from having their court costs limited; new harder-to-meet tests and requirements have been set out, also, after a brief tussle with the House of Lords, who initially rejected the idea, it has been agreed that in the future ‘interveners’ may face the financial punishment of paying the Government’s costs. Interveners are bodies who are given permission by the court to provide additional legal information or evidence to help the court to make the correct decision in a particular case – i.e. they are neither taking the case (the applicant for Judicial Review) nor defending the case (responding to the Judicial Review). The Courts have made it clear that they find interventions useful in reaching decisions, but the Government does not like them because they can sometimes broaden or evidentially underpin the case against the Government. Therefore in the future the courts will have to award costs against the intervener should a government body involved in successfully defending a Judicial Review ask the courts for such costs and provide sufficient justification, and the Judge can only refuse if there are “exceptional” circumstances.
The Bill also gives new powers to the Lord Chancellor; powers that will enable the Lord Chancellor to restrict further the court’s ability to hear Judicial Reviews or make them affordable to charities. The Lord Chancellor “may by regulations amend this section by adding, omitting or amending matters to which the court must have regard when determining whether proceedings are public interest proceedings”. In the future the rules of the international Aarhus Convention on Access to Environmental Justice will only apply to cases that in “the Lord Chancellor’s opinion, have as their subject an issue relating entirely or partly to the environment”.
Two issues remain undecided by Parliament. The Government wants to set out much tighter rules about taking Judicial Reviews; rules that it could use to exclude a great many cases and the Government wants to hit individuals and organisations, who provide financial support to charities that take Judicial Reviews, with the Government’s court costs.
The main restriction that the Government wants is to change the permission criteria; before taking a Judicial Review not only would you have to prove to the courts that it was arguable that there had been a substantive error in law or procedure by the decision maker, the applicant would also have to show that the “outcome for the applicant would have been substantially different if the conduct complained of had not occurred”. This is particularly difficult for environmental cases where charities are not defending their personal wealth or wellbeing, but the general good. It would now appear easy for the government body to argue that even if they had stuck to the law they would have made the same decision, and even if they had not made the same decision, alternative decisions would have made no direct ‘substantial’ difference to the charity concerned. The House of Lords strongly objects to this restriction and after passionate debate voted to allow the Courts to retain discretion to allow a Judicial Review case, if it is in the public interest.
In many cases a charity taking a Judicial Review can only do so because of donations from its members and supporters. Under the new Act the court will have to ask for the financial details of all of those individuals and research their ability to bear additional costs. If the Judicial Review fails then the court must consider awarding costs against the members of, or financial donors to, the charity or community group. The intention here is clear and awful, the Government is saying that if you support a charity that challenges us in the courts we will chase you for costs. A Government concession that would exclude contributors of ‘small’ amounts when the body taking the Judicial Review is very rich is of little assistance to most small charities or community groups. Again this has caused outrage in the House of Lords which contains many members who are not career politicians, but have had leading roles in charities and other community bodies. Currently the Lord’s amendment allows the courts to retain discretion about whether they ask for the financial details of charity funders and then use it to allocate court costs.
How has the Government tried to justify this costs dispersal intimidation? Chris Grayling set out a Trojan horse reason in the Commons “an organisation should not be able to set up a shell company to bring a judicial review without any information being available to the court about who is behind the shell company”. However many lawyers have pointed out that the Courts already have ample powers to deal with such a situation.
Justice for England!
The Bill is now in Ping-Pong – having been to the Commons and Lords once each, as all bills do, the Commons did not agree with the amendments that the Lords made and sent it back, the Lords insisted on three of the four amendments and have now sent it back to the Commons. This game will continue until one house (we hope the Commons!) concedes or a compromise is found.
This is a matter of critical importance for everyone who lives in England and may be affected by bad Government decisions, it’s not just ‘Left-wing campaigners’ who want to live in communities that are properly consulted; who don’t want to see wildlife sites bulldozed; and who take pride in living in a country where an independent judiciary can protect the smallest charity from having their rights crushed by the biggest Government department.
The Lord Chancellor is the highest ranked ‘of the Great Officers of England’ but these moves, intended to put himself and Government above the law, strike to the heart of how our democracy functions.
Is it for us to play a part in determining what is right or wrong, or can only Chris Grayling and his successors decide this for us?