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Who’ll be the Judge? Legitimately elected governments are not excused the obligation to comply with the law

February 16th, 2020

On 11 February, following a court ruling, some Jamaican nationals convicted of serious crimes were not put on their scheduled deportation flight because they had not received legal advice about their deportation. This ruling does not mean that this group will be entitled to stay in the UK. Nor does it mean that the government will not be able to proceed with the deportations. What it does mean is that there will be a pause to allow them to obtain legal advice. To judge by the fury of Ministers, one would have thought that the courts had ordered the government to provide these criminals free Xmas holidays in Mustique for the rest of their lives. What possible objection could there be to giving criminals the opportunity to obtain legal advice? Some might, in fact, be British nationals or have some other claim to prevent deportation. If that claim was well-founded under our laws, surely the government would not wish to risk breaking the law?  

Well, that’s what the PM said (“Obviously we don’t want to do anything that’s in contravention of the law”). But the reaction of Grant Shapps rather gave the game away: “We shouldn’t have the courts being used to overturn perfectly legitimate decisions” taken by the government. There speaks a Minister who does not understand the difference between “legitimacy” and “legality”, a misunderstanding seemingly shared by his new Cabinet colleague, the Attorney-General, and other Ministers.

A democratic election fairly held makes the government legitimate. This government, whether one supports it or not, has democratic legitimacy and the right to govern. But that is not the end of the matter, despite what Tory Ministers – with all their talk of the Will of the People and the election result – say. A legitimately elected government is not excused the obligation to comply with the law simply because it has been elected. It is not excused it even if the People (or only those People Ministers listen to) say this is what they want. A legitimately elected government may still act unlawfully. Indeed, it often does: in 2018 the government paid £8.2 million in compensation to people whom it had detained without lawful authority.  

And since it is under such an obligation, there needs to be some method whereby its compliance with the law is tested and remedies granted, if it is found wanting. Without the ability to challenge and obtain a remedy, the obligation to comply with the law is an empty one. Voters cannot be expected to rely simply on the good intentions of Ministers and public servants. 

That is what judicial review seeks to do. It allows those affected by a government decision (or by any body carrying out a public function) to test that the decision has been taken properly and lawfully.  So, for instance:- 

  • Did the public body have the legal power to make the decision (a particular issue with local authorities)?
  • Did it ignore relevant matters? Did it take into account irrelevant matters?
  • Did it give those affected the opportunity to make representations?
  • Did it show unfair bias?
  • Was the decision contrary to relevant laws (the Human Rights Act, for instance, which gives effect to the ECHR, an early example of taking back control from a European Court)? 
  • Was it so irrational that no reasonable body could properly take the decision?

Illegality, procedural unfairness and irrationality. Which legitimate government in a stable democracy would want to be accused of behaving in such a way?  

What the courts cannot do is impose a different decision simply because they disagree. They can make the government pause; they can require it to make the decision properly; they can stop a citizen from suffering a wrong as a result of a misuse of governmental powers. But they cannot make the decision themselves or overturn an Act of Parliament.

All the government needs to do is comply with the law when reaching its decision. This is not an onerous requirement, though it does require some thought and care.  And if – sometimes – it gets it wrong, this does not undermine the government. If anything, it should be seen as an opportunity to learn how to govern better. It can always change the law, after all.

If politics is really about power (who has it, who wants it) then it is little surprise that governments resent losing some power to individuals challenging what they want to do. It is all too easy for governments to forget that they are given power by the people in order to serve them – all of them – not just those who voted for them – not to boss them about. It is all too easy for governments to hate the fact that they too are subject to the law and, therefore, to hate those who rule on it and enforce it. It is all too easy for governments to want to mark their own homework. This government shows every indication of wishing to give in to these adolescent temptations.

Judicial review is, in short, a way of helping to ensure good governance, of levelling up – to a certain extent – the balance of power between the state (in its many guises) and the individual. It gives the individual a little bit of control over what government can do to him or her. It gives the individual certainty that the law will be applied, to all, and applied fairly and properly – an essential requirement if those living or investing in a country are to feel secure and safe from the exercise of arbitrary power. It restrains – a little – the state, which has overwhelming power and can, if unrestrained, cause great harm to individuals. It asks the state to think again. A pause – before some irretrievable action is taken – is generally sensible. Think of it as the governmental equivalent of being told to leave your tough, furiously drafted and oh so strongly felt email unsent while you reflect on it overnight. 

In the government’s desire to attack lawyers and judges and curb judicial review, there is an element of the government tilting at non-existent windmills. Other than revenge for the Miller decision and the prorogation case, what exactly is the mischief which needs curing?

In 2018, 3,597 judicial review claims were lodged. Only 184 cases reached a hearing, the rest refused permission, withdrawn or resolved. Of these 184, the government or public bodies won 50% and lost 40%; the rest are still unresolved. Those 73 lost cases are really bugging Ministers, though. Perhaps they might remember the saying: “De minimis non curat lex.”

Many such cases are in areas such as immigration, asylum, prisons – areas which have had little investment or worse, with complicated laws and, often, low quality decision-making. There is little public sympathy for such claimants. They are viewed as the Devil, unjustly getting benefit of law. 

But let’s take people with learning disabilities, some of whom have been locked up for years in appalling accommodation with poor care and have suffered or died as a result. Should they be denied a remedy because a Jamaican criminal wants to speak to a lawyer? When public services for the unloved are so poor, it is unsurprising that there are so many challenges, the latest by the EHRC on behalf of people unable to speak for themselves. 

Might some bright thinker with a long-term vision (surely there is at least one in government?) wonder that if there was proper investment in such areas, this would raise the quality of decision-making and lessen the need for challenge? Apparently not. The current strategy is – as it has been for years – to under-invest, tolerate the second-rate – or worse – then attack those who try to remedy the problems caused. Now it is also to hobble or shoot the referees.

No legal system is perfect. The right balance between competing rights, between freedom and security, between politics and the law is a difficult topic which needs careful thought and attention. What it does not need is an arrogant approach by ignorant politicians grandstanding and demanding that “I want” (or, more disingenuously, “I know what The People want”) should be the only test of legality, that victory at an election makes further challenge disloyal or illegitimate.  

Sometimes judicial review helps politicians. Take the WASPI women whose extravagant claims for public money were dismissed. Or the MP against whom a political opponent brought a criminal charge of misconduct in public office last year when that MP held no Ministerial office at all. The MP sought a judicial review of the decision to issue a summons. He won – the judges dismissing the summons being scathing about the attempt to misuse the criminal justice system in such a way. Perhaps this MP could explain to the Attorney-General just why judicial review matters. He will certainly get a hearing. He is the Prime Minister, after all.

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