Dominic Raab is considering restricting the powers of judges to an extent that could make it more difficult to pursue 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 that 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 how decisions were made by public bodies. .
The move comes amid rhetoric from ministers about the overreach of judges and “left-wing lawyers”, with the recent – still pending – judicial review case challenging Rwanda’s deportation flight angering the government.
Although the government only consulted judicial review last year and parliament subsequently passed the Judicial Review and Courts Act, which came into force on July 15the Justice Department document reads: “You (DPM [deputy prime minister]) have indicated that you wish to consult each other on further judicial review reforms”.
It then makes suggestions for change – “subject to your initial policy guidance and the outcome of any consultation” – which several experts say would make it harder to pass a 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 witnessed an unprecedented attack on our legal rights, including in the Judicial Review and Courts Act and ongoing proposals to scrap the Human Rights Act. nobody. The government is determined to make it as difficult as possible to bring them to justice and hold them accountable for illegal acts.
“Whether it’s erecting more hurdles to bring lawsuits, overturning judgments they don’t like, or blocking more and more actions against challenges, the government’s attempts to avoid making accounts set a very dangerous precedent for all future governments of all stripes.
The Judicial Review and Courts Act removed the right of parties to appeal against court decisions, mainly in immigration/asylum and social security cases. But many believe Raab’s predecessor, Robert Buckland QC, who initiated the bill, was sacked because he did not go far enough to limit judicial review.
The MoJ document suggests that Raab is determined to do just that. One of the proposed changes is to “assess the intensity of scrutiny to be applied in different cases,” which could mean anything from dictating the criteria judges must apply to excluding them from hearing cases. in certain areas of government decision-making.
He also refers to changing cost rules on “standing to sue,” which require the plaintiff to have “sufficient interest” to bring an action. By increasing the burden of costs if parties are found to lack standing, the government may seek to discourage NGOs from pursuing cases with implications for many people beyond the plaintiff.
Finally, he suggests “dealing with” individual named cases, including Privacy International, which determined that the court of secret investigative powers was subject to judicial review, and the Guardian’s successful attempt to get secret letters written by Prince Charles to government ministers. In the latter case, the Supreme Court ruled that the attorney general could not block publication simply because he disagreed with the higher court’s decision to authorize it.
Although it is a government right to introduce legislation in parliament in response to a particular case, it has already been suggested that it wishes to allow ministers themselves to strike out the findings of judicial reviews with which they are not Okay.
Jolyon Maugham QC, the director of the Good Law Project, which has been involved in high-profile legal reviews against the government over Brexit and the VIP route for suppliers of Covid personal protective equipment, said: “We already have laws to prevent cases that lack merit. And the effectiveness of judicial review as a tool to prevent ministers from breaking the law is already under severe pressure.
“These measures are meant to ward off the tiny rump of deals that can actually succeed. What Raab seems to want is a world in which 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 the total number of cases filed, i.e. 30% of those that resulted in a final hearing) were the lowest since records began in 2001, raising concerns that government rhetoric is having a chilling effect on judges.
The Justice Department said it was not commenting on the leaked documents.