Comment: In Grayling’s Britain only the very rich can afford justice
By Andy Slaughter MP
The lord chancellor, Chris Grayling, is no friend to those of modest means seeking justice from his courts. He has cut a quarter of the legal aid budget, set court and tribunal fees at unaffordable levels, and exposed claimants to eye-watering costs bills that wealthy defendants often run up.
Now he has judicial review in his sights, the legal mechanism by which an individual can hold the executive – whether that is a local council, government department or hospital trust – to account.
Judicial review is not an easy procedure. A judge must look at your case and decide if you have a runner. You must raise the funds to fight your corner, weighing up the risks and deciding whether you – on your own or as a group – can really take on and beat the state.
It is particularly hard for those fighting planning consents for major developments, which can threaten to blight the lives or even destroy whole communities, where the council, developer and increasingly the government work hand in glove. Just ask my constituents in West Kensington who are currently fighting plans to demolish 760 affordable homes and the Earl’s Court Exhibition Centre to build 8,000 luxury tower-block flats.
Housing, health and planning are all areas in which judicial review can have a real impact.
So why is Grayling trying to make it all but impossible for anyone except the very rich to bring judicial review cases in future?
Grayling has a problem with judicial review, which he thinks is used by left-wing groups to thwart the plans of his government and their allies among the big developers. These ‘left-wing campaigners’ have recently included the Campaign to Protect Rural England, the Countryside Alliance and Stop HS2.
The senior judiciary revealed that they could not find "any evidence of inappropriate use of judicial review" by campaigners.
Evidence-based decision-making has never been important to a lord chancellor who would rather go with his political gut instincts, but now he is letting political paranoia block the means of challenging poor decisions made by Grayling and his colleagues.
Last year he singled out planning judicial review by saying cases must be brought within six weeks of any decision rather than the usual three months, knowing it is harder for small community groups to raise money and start complex proceedings in this short space of time.
If a developer has a planning application turned down they can appeal to the inspectorate, a relatively straightforward process. Objectors have no such right and judicial review is usually the only legal remedy available.
Legal aid is difficult to obtain but even Ken Clarke, as recently as the Legal Aid Act 2012, said it should remain generally available for judicial review. Now, in regulations published last week, Grayling seeks to severely limit legal aid for judicial review.
But the strongest attack comes in the criminal justice and courts bill which has just completed its committee stage in the House of Commons. This otherwise fairly innocuous bill devotes a series of clauses to the sole purpose of sabotaging judicial review. The proposals, each of which is damaging, are devastating in combination.
Whether you are trying to save your local hospital or stop a sewage farm being built next to your village, your chances of challenging even the most arbitrary decision will be greatly reduced.
Firstly, courts will now be required to refuse a judicial review where it thinks that the state might be able to achieve the same result another way. This completely misses the point of judicial review, which is that it is designed to stop bad decision-making. The court is not concerned with the intention of the decision-maker, especially if this is a political decision by an elected body, but with the quality and legality of the way the decision has been made. Either Grayling does know this and chooses to ignore it, or he does not understand; either option makes him unfit to be in the job of lord chancellor.
Secondly, anyone bringing a judicial review will have to declare where any money they raised to fight their case has come from. This sounds reasonable but it is designed to warn off potential donors to fighting funds who may fear becoming liable to pay the very high costs of the organisation they are taking action against.
Thirdly, charities, NGOs and civil society groups, which are often invited by the court to ‘intervene’ in proceedings to offer advice, could now find themselves liable to pay the costs of all the parties. Unsurprisingly groups ranging from Shelter to the CPRE say their trustees are unable to take this financial risk.
Finally, the costs protection currently on offer will be withdrawn in most cases, exposing anyone bringing judicial review proceedings to swingeing costs if they lose. Here the Aarhus Convention still offers some protection, but ultimate Europhile Grayling, who must hate being thwarted by European law, is likely to look for ways to restrict this as well.
Grayling is planning a big party next year to celebrate the 800th anniversary of Magna Carta. He fails to see the irony that he, the first non-lawyer to hold the post of lord chancellor in over 300 years, is undermining its greatest legacies, establishing the rule of law and protecting the citizen from the uncontrolled power of the state.
Andy Slaughter is a shadow justice minister and the Labour MP for Hammersmith
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