Dominic Raab plans to curb the powers of judges in a move likely to make it harder to bring successful legal challenges against the government in England and Wales, according to a leaked document seen by the Guardian.
The Ministry of Justice (MoJ) document suggests the Justice Secretary, who is also Deputy Prime Minister, is considering changes that would have the effect of limiting ministers’ liability in judicial reviews brought by claimants concerned about the way they have taken the decisions of the public bodies. .
The move comes amid ministerial rhetoric about the overreach of judges and “left-wing lawyers”, with the recent judicial review case – still pending – challenging Rwanda’s deportation flight drawing the ire of government
Although the government only consulted on judicial review last year and Parliament then passed the Judicial Review and Courts Act, which came into effect on July 15, the Ministry of Justice document says: “You ( DPM). [deputy prime minister]) have indicated that they want to consult on new reforms to judicial review”.
It then makes suggestions for change, “subject to your initial policies and the outcome of any consultation”, which several experts told the Guardian would have the effect of making it more difficult to carry out a successful review.
Charlie Whelton, head of policy and campaigns at Liberty, said: “This leaked document suggests the government plans to make it even harder for people to challenge them and make themselves even less accountable to the public.
“Over the past two years, we have seen an unprecedented assault on our legal rights, including through the Judicial Review and Courts Act and through ongoing proposals to scrap the Human Rights Act. The government is determined to make it as difficult as possible to carry- them to the courts and make them responsible for illegal actions.
“Whether putting up more barriers to filing cases, overturning judgments they don’t like, or blocking more and more actions from being challenged, the government’s attempts to avoid accountability set a very dangerous precedent for all future governments of all kinds”.
The Courts and Judicial Review Act removed the right of parties to appeal court decisions in mainly immigration/asylum and social security cases. But many believe Raab’s predecessor, Robert Buckland QC, who instigated the bill, was sacked because he did not go far enough to curb judicial scrutiny.
The Ministry of Justice document suggests that Raab is determined to do so. One proposed change is to “assess the intensity of review to apply in different cases,” which could mean anything from dictating the criteria judges must apply to excluding them from hearing certain cases areas of government decision-making.
It also refers to changing the costs rules on “stay”, which requires the claimant to have “sufficient interest” to bring a case. By increasing the cost burden if the parties are found to lack standing, the government could try to discourage NGOs, which pursue cases with implications for many people beyond the claimant.
Finally, it suggests “addressing” individual cases by name, including Privacy International, which ruled that the secret tribunal’s investigative powers were subject to judicial review, and the Guardian’s successful attempt to publish secret letters written by Prince Charles to cabinet ministers. government In the latter case, the supreme court ruled that the attorney general could not block publication simply because he disagreed with the high court’s decision to authorize it.
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While it is the government’s prerogative to introduce legislation in parliament in response to a particular case, it has previously been suggested that it wants to allow ministers themselves to remove findings from judicial reviews with which they disagree.
Jolyon Maugham QC, the director of the Good Law Project, which has been involved in high-profile judicial reviews against the government relating to Brexit and the VIP lane for suppliers of Covid personal protective equipment, said: “We already have laws to prevent cases. that have no merit. And the effectiveness of judicial review as a tool to inhibit the breach of the law by ministers is already under great pressure.
“These measures are designed to repel the small group of cases that may nevertheless succeed. What Raab seems to want is a world in which the government is above the law.”
The Guardian revealed in June that the number of high court judicial reviews (31) found for the claimant last year and the success rate (2.2% as a proportion of total cases brought, or the 30% of those who went to a final hearing) were the lowest since records began in 2001, prompting fears that the government’s rhetoric was having a chilling effect on judges.
The Ministry of Justice said it did not comment on the leaked documents.