Friday, 5 December 2014

Perhaps local LibDem parties should threaten deselection

It is a weapon more associated with Labour (though the heavy hand of the North London commissariat has proved more weighty in recent years) and the Tories (witness Anne McIntosh's travails in Thirsk), but even some Liberal Democrats might find the affront to the principles evidenced here and here overcoming their niceness. Sarah Teather, the sole vote against Chris Grayling's muzzling of judicial review, will be missing from the next parliament, as the Brent MP is to stand down. The point is that the Liberal Democrat party is the only one formally committed to equal access to the law. If not our MPs, who else? One answer is Elfyn Llwyd, not always in the Plaid Cymru mainstream, also standing down in 2015, who spoke in Monday's debate:
Judicial review is often the only means by which individuals can hold the Executive responsible for wrong -doing, yet the Government are trying to shut down that avenue for redress. The Joint Committee on Human Rights has said it sees no evidence to support the Government’s reforms, and neither does Justice, Liberty, JustRights, Human Rights Watch, the Howard League, Redress, Inquest, Mencap, Amnesty International—the list goes on; can anyone report which groups actually support the Government in these changes? [Hon. Members: “The Whips.”] Yes, the Whips.

On clause 67, Lords amendment 107 would maintain courts’ discretion over whether to order an intervener to pay the costs of relevant parties and vice versa. As drafted, the Bill would compel the court to order interveners to pay such costs, other than in exceptional circumstances, as we have heard from the hon. and learned Member for Torridge and West Devon. The provisions in clause 67 are among the most disturbing in the Bill. Unamended, the clause would ensure that charitable organisations and individuals with expertise could no longer enrich the opinion of the courts by intervening in cases where their expertise would be of use because they could not justify the risk to their trustees, funders or members of supporting litigation. As the noble Lord Carlile [Liberal Democrat] asked in the other place:

“How could trustees reasonably agree to support an intervention when it could result in losing tens of thousands of pounds or more in costs, jeopardising, in some cases, the existence of small charities?”—[Official Report, House of Lords, 30 June 2014; Vol. 754, c. 1607.]

Yet the plans would still allow Departments and corporations with huge funds to intervene and hence play a pivotal part in the development of public law.

I ask the House to reconsider the Government’s proposals in the context of the various and—I am trying to avoid vitriol—crippling reforms to access to justice in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. As a result of the significant cuts in that Act, more individuals will be looking to charitable organisations for support in getting justice. It seems to me that clause 67 will take away this last resort. I am afraid the Government seem intent on restricting access to justice so that only those with the least to lose can gain redress. Why do they think it necessary to pursue this agenda, which will throw the baby out with the bathwater, despite the perceived misuses of the law relating to judicial review? The hon. and learned Gentleman, a far more experienced lawyer than me, has referred to the time-honoured practice of judicial review—the Wednesbury principles and so on—and the practices in place to ensure that Departments act reasonably in all circumstances. Why should we not uphold the individuals’ rights to ensure that Departments act reasonably?

In conclusion, Justice said:

“Punitive and disproportionate, these measures are designed to deter any organisation with limited funds acting as an intervener. In practice, this means that – even in important cases with a constitutional impact which reaches far beyond the immediate interests of the parties - the court will no longer benefit from expert advice and information provided from cash-poor and experience rich charities and NGOs.”

I think that says it all. As we heard earlier, senior judges themselves are on the record as saying that the courts are enriched by the interventions of these people, who know exactly what they are talking about.

In this same week, Theresa May allowed only judicial review as a means of redress for those deemed to be returning jihadis, labelled as such by a functionary of the state, not by a court of law:
Mr Dominic Grieve (Beaconsfield) (Con): I understand the system that my right hon. Friend is putting in place of managed return, but what is not clear in the Bill is the system that will be present to enable that managed return requirement to be challenged. I wonder whether she can help the House on that point. It seems to me that there must be a mechanism by which a person who is told that they have to return in a particular way can challenge it on their return to this country, and do so expeditiously, if it is not to be an unwarranted interference with their rights.

Mrs May: There will be a form of challenge available to an individual under judicial review. We will also have to notify the individual that action is being taken against them, so that they are aware that the measure is being put in place.

It appears from the following equivocal exchange that there is unlikely to be any state aid for returners who cannot find the money for a legal challenge from their own resources:
Yasmin Qureshi (Bolton South East) (Lab): On a point that was made earlier, if an individual has the right to challenge how they are managed—I think the right hon. Lady said that it would be by means of judicial review—can we ensure that they have legal aid to do that?

Mrs May: As the hon. Lady knows, the Government have made a number of changes to legal aid, and we are looking at the position in relation to that particular issue on these new measures.

Late nineteenth-century Irish judge Sir James Mathew was just one of those down the ages pointing out the hypocrisy of the administration of justice:
In England, Justice is open to all, like the Ritz hotel.

Liberals and socialists in the last century moved to correct this, but under the last three administrations we have seen a tilting back of the balance towards the establishment. Even before the "reforms" of this government, I have seen two people in Neath Port Talbot clobbered with the financial cosh of costs awarded against them in cases where they were seen to be in the right. Surely we cannot rely on the efforts of the stinking rich to expose maladministration in future?

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