The rule of law is inherent in democracy whatever the level of governance or public authorities – national or local – as this concept addresses the exercise of power as such and the relationship between the individual and the state, which is a starting point for building any democratic system.
In an extraordinary speech to the CBI conference, David Cameron launched the next phase of the Tory/LD government’s attack on the legal protections afforded to ordinary people … and hence another Tory-led attack on democracy.
Invoking Hitler and the war-time spirit, Cameron announced plans to curb judicial reviews … plans which the Law Gazette reports as creating fury and bewilderment amongst lawyers (1). These new proposals follow on from the constant calls for the European Convention on Human Rights to be substantially rewritten and the Legal Aid, Sentencing and Punishment of Offenders Bill (LASPO) which received Royal Assent in May 2012.
A judicial review – review by a court of law of actions of a government official or entity or of some other legally appointed person or body or the review by an appellate court of the decision of a trial court.
Opponents of government decisions and policies would be given less time to apply for judicial review, face higher fees and see the chances to appeal halved. Also announced was the suspension of Equality Impact Assessments, on the basis that they will cut the number and length of public consultations. David Cameron justified the proposals on the basis that applications in ‘hopeless cases’ were hindering infrastructure investments and economic growth.
However, lawyers variously described the proposals as ‘a peculiar target’ in the quest for better economic competitiveness; ‘the dark suggestion that the suspension of normal legal process is acceptable’; and ‘a myth’ that judicial review is stopping the government from proceeding with policies to help boost the economy.
Meanwhile, the Public and Commercial Services Union did not mince their words when they accused the UK government of wanting to use these proposals to silence critics over spending cuts (2) The PCS were not side-lined into believing that these proposals were aimed solely, or even mainly, at planning consent.
PCS general secretary Mark Serwotka said, “Against the backdrop of the threat of a triple dip recession, this is a clear attempt to restrict ordinary people’s rights to question and challenge this Tory-led government’s unfair and damaging cuts that so obviously are not working. (2)
Nevertheless, speaking about the obvious environmental concerns, The Campaign to Protect Rural England (CPRE) points out that’ judicial reviews “are the only means for community groups to challenge decisions to grant planning permission” and that judicial review costs “are already far too excessive for environmental groups to be able to use judicial review to address environmental wrongs”.
Shaun Spiers, CPRE chief executive said: “Judicial review is a vital safeguard against poor quality decision-making. It helps prevent the sort of developments that degrade the environment and, in the long run, undermine the economy. If David Cameron really wants to reduce the use of judicial review, he should try to improve the quality of legislation. For instance, the Growth and Infrastructure Bill now going through Parliament has not benefited from a white paper or from pre-legislative scrutiny. The government is making it up as it goes along. If passed, decisions based on it are almost certain to end up in the courts. We need good quality development and we need public consent for new infrastructure. Panicky announcements of this sort, designed to undermine the credibility of the planning system, will not help us get either.” (3)
Martin Tett, leader of Bucks County Council and chairman of the 51m group,the18 councils fighting the HS2 plans, also undermines the government’s case:
“The vast majority of judicial reviews are not about major infrastructure projects but rather relate to immigration and asylum cases…..For local people a judicial reviews may be the only way for local people or businesses to prevent public bodies acting illegally….The recent example of the legal challenge by Virgin Rail to the West Coast Main Line franchise process exposed fundamental flaws in the procedures adopted by the Department for Transport in awarding that and other franchises….Major changes have been made for the public good as a result.”(3)
The Coalition for Access to Justice for the Environment, an umbrella group that includes WWF-UK, Friends of the Earth, Greenpeace, and the RSPB (CAJE) condemned the move, warning that it could “destabilise democracy and undercut the UK’s obligations on public participation and access to environmental justice under EU and International environmental law”. (3)
The CAJE says the UK has already breached EU and international law because of the high costs of legal action for environmental cases and is due to appear before the European Court on this point early in 2013. It warns that moves to reduce the opportunities to appeal against a decision to refuse an application for JR could also “endanger compliance with EU law”. Furthermore, reducing the time limit within which people can bring challenges is “unrealistic” and could require changes to primary legislation.
Carol Day, WWF solicitor, said: “These proposals are hastily thought-through and seriously misguided. Friends of the Earth’s executive director Andy Atkins said: “The planning system … mustn’t become a scapegoat for the government’s economic failings.”
This is all of a piece with other far-reaching government moves to curtail the rights of individuals. Michael Meacher MP writes:
… there is a host of other, little-noted, changes in this week’s Enterprise and Regulatory Reform Bill which will severely curtail workers’ rights. The cap for compensation in unfair dismissal cases is being significantly lowered. There is much reduced protection for workplace whistleblowers, which will allow more abuses at work to go unreported…. The government is introducing regulations requiring claimants to provide prescribed information when using ACAS conciliation services… a deliberately nitpicking hurdle inserted, as in the notorious pre-strike procedure, to enable judges to abort action on a technicality…. Whistle-blowing claims will only be successful in future if the worker believed that the disclosure was made in the public interest and can demonstrate it was reasonable for him to believe that. One effect of that will be that it will limit the protection for workers who raise concerns about health and safety issues. The regulations will also in future allow a judge who has (subjectively) decided that a claim has little reasonable prospect of success to require a deposit of £1,000 to be laid before the claim can proceed. This will make it much harder (as was of course intended) for some claims to proceed even when in the event they would have won through. (4)
At the time of the legal aid bill’s final reading, there was comparatively little reporting or discussion, given the magnitude of its implications. Amnesty International UK Director Kate Allen said of the government’s legal aid bill (LASPO) when it was passed:
“This is a dark day for justice in the UK, and internationally. The government has placed legal remedy beyond the reach of human rights victims and slammed the doors of the UK courts shut on them. “These changes are an open invitation to huge multinationals to operate with impunity around the world, as they can be confident they won’t be challenged or held to account in a UK court.”(5)
However, attempts by the House of Lords, to mitigate the impact of the ministers’ plans to cut legal aid in England and Wales, were overturned by the Tory/LD MPs when the legislation was returned to the House of Commons. The Lord’s amendments would have protected children, domestic violence victims and disabled people from the worst of the legal aid cuts.
Richard Hawkes, chief executive of Scope, said “To cut legal aid at a time of unprecedented changes to welfare support would mean disabled people who fall foul of poor decision-making, red tape or administrative error being pushed even further into poverty as they struggle to manoeuvre the complicated legal system without the necessary expert support they need.”
The parent of a 48-year-old daughter with learning difficulties and other health issues, summed up the situation ‘Legal aid bill ‘puts most vulnerable at risk’:
“It is, sadly, getting worse by the day. However, it is not the result of a genuine error, or rushed policy-making, but of a deliberate and callous plan.
The coalition knew full well that its planned attack on the benefits of the disabled and the weak would lead to a huge rise in challenges, supported by legal aid. It was also well aware that the cuts were going to be so callous that 90% of those affected who secured legal representation would win their cases and have their benefits reinstated. So the link between the introduction of the benefits cuts and legal aid cuts was deliberate, and it started from the first day that David Cameron arrived in Downing Street.
In the short period of time since then, people with serious disabilities have gone from being “poor dears” to “scrounging bastards”. The rightwing press has helped in the preparation for the cuts in legal aid and the increasing attacks on the wellbeing of vulnerable people. Here in Barnet, Tory councillors are planning to make a profit from disabled services – and the only way they can make that profit is by destroying or cutting back to the bone their support services.
The attack on benefit claimants by this coalition government, along with the junta-style assessment panel, is for one purpose only, and that is to save money, no matter the human cost.
John Sullivan Edgware, Middlesex (6)
Polly Toynbee reports another quiet change to the law – that protecting homeless families, Homelessness (Suitability of Accommodation) (England) Order 2012.
The change allows a local housing authority to discharge its duty by offering the applicant a suitable property let on an assured shorthold tenancy from a private landlord. Unlike the current position, where an applicant can refuse an assured shorthold without losing his or her entitlement, refusal of this offer will now bring the duty to an end.(7)
All a council need do is find a private landlord anywhere with a one-year lease, and wash their hands of them thereafter. Families can be housed anywhere with an “affordable” rent, hundreds of miles away in districts where rents are cheap because jobs are non-existent. Wrench children out of schools, parents from their jobs, take families away from where they lived for generations without the means to pay train fares for visits home – all this breaks the social contract on housing. So do the deep cuts in housing benefit: this week, regulations were laid that will set off a catastrophic and chaotic exodus in April. There is no legal definition of an “affordable” rent, but most people might presume it should never eat into the absolute minimum the state provides to keep a family alive. Yet, even after families are exported, many of these “affordable” rents will leave them with virtually no money to live on. One estimate finds only Middlesbrough has rents low enough for a family with four children to pay up and still keep the sum unemployment benefits are supposed to provide for bare survival. (8)
As Polly Toynbee writes: ‘Britain keeps plunging further back in time as yet another plank of the welfare state is removed.’
With their proposals to limit judicial reviews, the government has followed its usual pattern of devising legislation without reference to those experts in the field. In this instance, without taking advice from lawyers, hence their ‘fury and bewilderment’. But this was also the case, with the Health and Social Care bill, the Welfare Reform bill and the perpetual changes wrought by the Education Secretary, Michael Gove.
Furthermore, just as George Osborne’s austerity measures were/are contingent on the population being persuaded that the global banking crisis was in fact the result of government overspending, Cameron invites us to believe that ‘planning red tape holding back economic growth’ is the rationale for the draconian proposals limiting access to judicial review. Under this guise, they hope that these measures will be quietly slipped past the mainstream media.
The overall strategy seems to be to cut the ‘provision’ and then make a legal appeal almost impossible by increasing its cost, removing legal aid, reducing the time frame and if possible removing the decision from the courts altogether.
This dismantling of the judicial review process is yet further example of the disregard with which this Tory/LD government treats the democratic process and the protection of UK citizens. It appears that the Tories act solely on behalf of finance and corporations. The evidence all suggests that their ultimate aim is to create a low-waged economy with minimal protection or benefits – a UK workforce that will be on a par with, and presumably as profitable for the super-rich as are, the BRIC countries such as India and China.
Far from being about ‘speeding up planning consent’, the curbs on judicial review will impact on every aspect of the relationship between the individual and the state – from disability benefits to the environment; from safety at work to the dismantling of the NHS; from asylum seekers to homeless families. These changes must be opposed.