Successful high court appeals to government policy and decisions by public bodies have dwindled dramatically, prompting warnings that ministers ’attacks on lawyers could have a gruesome effect on judges.
The proportion of civil court reviews in England and Wales, excluding immigration cases, which plaintiffs won out of the total number of claims filed fell by 50% compared to 2020, according to the analysis seen by the Guardian. The figure is 26% if the success rate is measured from the cases that passed to a final hearing.
The fall came amid criticism from ministers. Attorney General Suella Braverman, before taking office, criticized the “chronic and constant invasion by … judges” and last year said that in some cases they had “forced the principle of parliamentary sovereignty.” . Grand Chancellor Dominic Raab has warned judges not to “harpoon” government infrastructure projects.
Boris Johnson doubled in attacks on “left-wing lawyers” after being forced to cancel Rwanda’s first expulsion flight scheduled last week following a precautionary measure granted by the European Court of Human Rights (ECHR) to one of the people who were to be dismissed. The Prime Minister responded by accusing English lawyers of “favoring the work of criminal gangs” who facilitated the crossing of the Canal. Raab suggested that ECHR judges had exaggerated.
In response to judicial review figures, Raab’s predecessor as Lord Chancellor, Robert Buckland QC, said: “There is certainly a downward trajectory the previous year, if it is a trend, it is probably too early to put it bluntly, but I would be very concerned if the judges felt pressured or responded directly to the ministers’ comments, that would not be desirable or appropriate. “
Buckland was fired and replaced by Raab in September, and many believed he paid the price for not going further in the judicial review bill to restrict challenges to the government. In December, the Times was informed that Johnson planned to let ministers rule out judicial review rulings with which they disagreed, although the prime minister’s spokesman said “it was not an accurate characterization.”
A report released this month by the parliamentary group of all parties on democracy and the constitution said that ministers had acted improperly by questioning the legitimacy of judges when they had not gone their own way and that the chancellor and the attorney general had not defended the judiciary. –Often doing the opposite– since the roles of the couples had become politicized.
High court figures, obtained using the Ministry of Justice’s (MoJ) online analysis tool, show that 31 civil court reviews (excluding immigration) were found for the plaintiff last year, the lowest since the available records began in 2001, compared to 68 (the previous minimum) in 2020.
Last year’s success rate was also the lowest recorded, either as a proportion of the total number of cases submitted (2.2%) or those that passed to a final hearing (30%). ). In comparison, the average success rates between 2016 and 2020 were 4.7% of the total number of files submitted and 38.9% of those that passed a final hearing.
Jolyon Maugham QC, director of the Good Law project, who identified the falling success rate and has been involved in high-profile anti-government judicial reviews related to Brexit and the VIP lane for protective equipment suppliers Covid’s staff said there was a risk that the rule of law “could easily become a relic for history books.”
He said: “The data suggest a collapse in government judicial scrutiny. We cannot know that this is because of how ministers talk about judges and the law, but it is not easy to identify plausible alternative explanations for candidates. In private, high-level judges are concerned. And they should be. “
Other observers said there were already indications that the Supreme Court had become more conservative. An analysis published by the UK Constitutional Law Association comparing last year to 2020 suggested that the UK’s highest court now had more “tendency to reject human rights claims (only two out of 18 they were successful last year) and to stand by the public authorities. “
In January, Patrick Hodge, vice president of the Supreme Court, spoke at an event organized by the Judicial Power Project (JPP), one of the main critics of the alleged judicial overflow, although he stated that I do not agree with some of the local [of the JPP]”.
Jonathan Jones QC (Hon), the former head of the government’s legal department, said the reduction in the success rate of the judicial review “sounds significant,” but it was difficult to draw conclusions as to why it had occurred. However, he highlighted the comments of Braverman and Raab, adding, “We have also seen more favorable language to the Supreme Court government and one or two significant decisions, for example, on presence,” which limited who may challenge alleged damage).
Conor Gearty QC (Hon), a lawyer and professor of human rights law at LSE, said that while judges did their best, “the number of victories has always been very small, and now we see a drastic reduction even in this small percentage “.
He added: “It is difficult to avoid the idea that the background noise of hostility towards judges and courts, relentlessly generated not only by ministers but even by the Attorney General himself, has had an effect.
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“The Supreme Court’s apparent desire to restrict the range of arguments before the courts and reduce contested socio-economic claims may also have had some effect. These are worrying times for those who see accountability to the law as an essential feature of the law. democracy”.
A Justice Ministry spokesman said: “Judicial review decisions are entirely a matter for independent judges, who now have more powers to resolve cases in a more flexible and practical way thanks to our reforms.”
Three historical cases of judicial review
In 2016, the high court ruled that parliament had to give its consent before the government could activate Article 50 and formally initiate Brexit, prompting criticism from ministers and the famous Daily Mail headline “Enemies of the people “. The decision was upheld by the Supreme Court which, in 2019, would rule that the extension of Boris Johnson’s parliament during the Brexit crisis was illegal, which again angered the government.
In 2017, the Supreme Court ruled that labor court fees of up to £ 1,200 were incompatible with access to justice, forcing the Ministry of Justice to remove the fees and entitle the return of those who had already paid them. In the judicial review filed by the Unison union, the judges also found that the quotas were contrary to the 2010 Equality Act, as they disproportionately affected women.
The government’s attempts to impose the dormitory tax on couples with severely disabled people, which would have seen their housing benefit reduced by 14% to have a “spare” room, was declared illegally. legal by the Supreme Court in 2019. The judges said that applying the reduction to a man referred only as RR, resulted in a violation of his right to housing under the Human Rights Act. They said the RR couple was severely disabled, so it is “accepted” that the couple needed an extra bedroom for their medical equipment. The effect was to restore the entire housing benefit to RR, and at least 155 more partners of people with disabilities.