More hurdles in holding the State to account

The UK government once again has had a go at undermining one of the legal pillars of accountability by seeking to exert control over judicial reviews – a process which allows for legal challenge of the decisions of public bodies.
The Criminal Justice and Courts Bill was debated in the House of Lords today and three key amendments were introduced which put a halt to the proposed restriction of access to and limiting the findings of judicial review proceedings.

The first amendment reversed government plans which presumed within the draft legislation that individuals would fund the cost of judicial review proceedings themselves. This would immediately create an inequality of arms since without the possibility of access to legal aid, a significant percentage of applicants, despite the merit of their cases, would simply not take the risk that the judgement would go against them. They simply would not be able to match the financial and legal resources available to public bodies and government Departments.

A second amendment struck down a proposal that applications for judicial review could be denied if the defendant (i.e. the public body or government Department) could show that even if their action was unlawful, it made no difference to the applicant’s circumstances. The implications of such a clause in legislation would be, in essence, to endorse illegal actions by agencies of the state.

A third amendment which removed a clause that required applicants to provide detailed financial information was also passed. The three amendments were proposed by crossbench Peer Lord Pannick.

The position of government was supported amongst others by Lord Tebitt who argued that Parliament should uphold laws rather than the “unelected dictatorship” of the judiciary. One wonders with a statement like that if Lord Tebitt actually knows how a common law system operates.

What is most disturbing is the seemingly concerted efforts of the current British government to curtail any mechanisms that might act as a brake or a check on state abuses of power. I wrote here on Slugger the other day about concerns that the British government was seeking to devolve its liability for conflict-related human rights abuses to the Assembly parties. In tandem with that, it has threatened to derogate from the European Convention on Human Rights and not take cognisance of European Court of Human Rights Judgements in UK law and to repeal the Human Rights Act. It has stripped out legal aid provision, once again undermining the principle of fair and equitable access to justice.

The Bill has been returned to the House of Commons for further discussion. Plans to give the Lord Chancellor the power to redefine what is deemed to be “public interest” will form a large part of that debate. I would expect strong contributions from local Members of Parliament in that debate, not least given the recent widespread cross-party support for a Kincora Inquiry and the public interest elements of that.

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