Don’t post in anger, I resolved many years ago. Wait for calm and let any fury in the writing be calculated, I thought. It was, and is, a wise rule. But today I am prepared to make an exception.
Today was the day a Lord Chancellor made a public announcement that people who were or might be presumed to be opposed to Government policy, should be prevented from bringing judicial review claims and that he was introducing proposals to bring this about.
Today was the day a Lord Chancellor stated, pretty much explicitly, that the rule of law should not be allowed to ‘disrupt Government policy’ and he intended to make sure it didn’t.
We knew that Grayling was not a lawyer. Famously the first Lord Chancellor not to be a lawyer since the 17th century. His appointment has been described by Sir Stephen Sedley in these terms
The decision in 2012 to put a political enforcer, Chris Grayling, in charge of the legal system carried a calculated message: the rule of law was from now on, like everything else, going to be negotiable.
While the assault on legal aid has had clear political motivations lurking under the banal justifications of ‘no money, dear boy’, lip service was always paid to the principle of rule of law and access to justice – the practice being another matter entirely.
But Grayling has taken off the fig-leaf. This is now expressly about limiting, or avoiding challenges to state power.
As I read Grayling’s poisonous words, drafted by some ambitious, unctuous, amoral SPAD perhaps but approved by him, and his triumphant assertion that Judicial Review must not be allowed to interfere with Government policy, which is, but of course, ‘for the good of the country’, I hear the distant pitter patter of jackboots and the opening solo of ‘Tomorrow Belongs To Me’.
Grayling has demonstrated utter contempt for the rule of law and for his office as Lord Chancellor. He must resign from that office.
[There is, of course, a consultation on ‘reform’ of judicial review also announced today. One might well take the view that the consultation is heavily coloured by Grayling’s public pronouncement.]
[Also, I understand that Grays Inn made Grayling an honorary bencher. So, Grays Inn, a decision you may wish to reconsider? Conduct unbecoming? ]
My immediate reaction was to agree entirely but I then thought I would take a look at the Consultation Paper and the case studies mentioned in the introduction do suggest that the present system is not working as it should. I do remember a judicial review taken by Network Rail and Linden Homes against Bromley Council to have the development plan for Bromley North Opportunity Site quashed on the grounds that it was unlawful for the development plan to state that there should be up to 250 homes on the site, when the prospective devleopers thought it should say “about 250 homes” instead. This was because of the housing densities recommended by the Mayor of London for housing developments. The Judge ignored the fact that the development plan proposal was for a railway station, shops, offices and flats all on the one site on top of each other, so local residents were rightly concerned about overdevelopment. Why it was allowed past the permission stage I do not know. Why it was successful I do not know. What has it achieved? Precisely nothing. The plan was never viable and is not viable now. Has the development plan bee remade? I don’t think so.
I don’t want to get into too much of a discussion about the Linden Homes case as it is quite a way off of our subject areas, but if I recall it properly there wouldn’t have been any permission stage in this case – it was an application as of right under a statutory provision.
The Linden Homes case was just an example of how the judiciary is willing to go into the minutiae of Councils’ administrative processes in order to pick holes in them under the pretext of finding the document is “not in accordance with the law”.
Judges must be spending many months writing these long and complex academic judgments about things that do not really matter, it seems to be an intellectual game to them and the barristers, while the major injustices to ordinary people they should be dealing with they have no time for.
Could you cite any specific examples of these “major injustices which lawyers have no time for?”
My point was the obvious one that the consequence of judges wasting time on pointless cases which should be summarily dismissed, is delay in hearing other cases. The statistics on the judiciary website show (a not untypical example) in Birmingham County Court, the 4th quarter of 2011, the average time between issue and hearing of a fast track or multi-track case was 56 weeks. Justice delayed is justice denied.
But you are unable to give any examples?
I was not talking about legal aid cases, and was not saying that there were not enough lawyers to deal with cases of injustice – the problems are the lack of legal aid, fees being too high for most private clients to pay, and a lack of court time. You must know that firms are turning people away who need their services in court, because they cannot afford the fees.
I was referring quite clearly to the delays in the judicial process caused by the misuse of court time for unnecessary proceedings, for which there is ample statistical evidence of delays which I have already drawn your attention to. You must have had the experience of having an urgent matter which needed a quick and short hearing and having to wait months for the hearing, not being able to get through to the courts on the telephone, the problems caused to litigants in person through the closure of public counters, and the centralisation of money claims, etc. These are all examples of the problems caused when the courts spend too much time on pointless time-wasting cases so that their resources are stretched at time when the Government (quite wrongly) is not providing the resources needed for a decent standard of civil justice to be maintained.
Another example of a pointless case: [2012] EWCA Civ 1586, rightly reversed by the EWCA.
See my response to you below.
The point about the latest proposals, though, is that they go beyond planning issues to wide areas of public interest and sheer unlawfulness on the part of the executive. The consultation document disapproves of the World Development Movement decision (WDM given standing to challenge Pergau dam/dodgy arms deal); and disapproves of the Maya Evans decision (peace campaigner given standing on issue of potential abuse of Taliban captured by Brits). Basically it is a move to a form of elective dictatorship where the Government can do what it wants because legal avenues to challenge it are barred (including through legal aid restrictions). Hence justified worries about rule of law and the likely new fashion for jackboots. I look at the background to all this here:
http://alrich.wordpress.com/2013/09/06/standing-grayling-attack-judicial-review/
A very good post, thank you. I recommend it to others.
I concur with NL and Alrich. When I read the paper I’m afraid a word used (in)famously by Chloe Moretz in the first film of Kiss Ass sprang to my lips (and I was on a train so that was a bit embarrassing). I would also point out that part of the latest paper which proposes that legal aid should not be available for planning appeals under Town & Country Planning Act 1990 s288 and s289 – the only groups I can think of who would need legal aid for such appeals are Gypsies and Travellers appealing from negative planning inspector decisions. Following on from the very specific exclusion of trespassers from ‘loss of home’ under LASPOA 2012, Is it possible (amongst all the other horrors) that Gypsies and Travellers are being specifically targeted by Mr Grayling? Sedley sums it all up nicely in his recent statement.
Could Michael Hall confirm that he is not talking about legal aid cases. Legal aid lawyers spend their daily lives dealing with ‘major injustices’ suffered by ‘ordinary people’. And the vast majority of JRs taken by legal aid lawyers are won, obtaining a good settlement for the client, prior to the permisison stage. No doubt there are a few rogue lawyers out there taking unmeritorious cases but the Legal Aid Agency should be well able to target and deal with those lawyers (which action the rest of us would fully support). Even with the adjusted JR proposal for legal aid cases I fear that legal aid firms would be unwilling to take them because they would be still running them at risk. So Grayling would get what he really wants (behind the fine words)- the government and other public authorities not facing any challenges to their decisions.
I entirely agree and I was not talking about legal aid cases but the cases which cannot be brought or defended because the parties are not eligible for legal aid and cannot afford the current level of fees being charged by firms for private work. The Legal Ombudsman wrote an article in the Gazette saying that fees should be proportionate and not based entirely on hourly rates, and that is now the legal position but the Law Society is still selling standard forms of client care letter which say nothing about the proportionality of fees. Apart from proposal from the Law Society that legal aid should continue and be enhanced (which I entirely agree with but it is not going to happen when we have Chris Grayling as Lord Chancellor) it has not suggested how solicitors can get round the problems caused, for example, by the withdrawal of legal aid for Inheritance Act cases.
My suggestion on my blog about this and in my letter to the Gazette have been completely ignored.
Oh where to start!
Michael, you are giving us a generalised complaint about the legal system not being efficient. None of this has to do with JR, still less with the specific proposals being made by Grayling/MoJ.
The obtainable figures do not suggest that the Admin court is clogged up by unmeritorious cases. In fact the ‘interest group’ JRs that are Grayling’s target had a roughly 50% success rate in fully heard cases 6 of 13 in 2012. This is a high rate of success.
So, Giles you think I should not have replied to those who asked for clarification of my comments, and you are not interested in the points I have made at all.
Of course I don’t!
The point is that Grayling’s argument and the MoJ consultation are largely on one specific thing. Reducing standing for JR. One might expect some evidence of these ‘unmeritorious’ JRs – and note it is not the functioning of the courts that Grayling is concerned with, but the interference with the implementation of Govt policy. Neither Grayling nor the MoJ have produced such evidence. You have come up with one failed JR – though whether it was unmeritorious is open to debate – and other wise just pointed to the general stresses on the civil courts. These proposals would, of course, make no difference to the civil courts at all outside the Admin Court.
So, when you go on about waiting time at Birmingham County Court, or the removal of legal aid from Inheritance Act cases, I am genuinely struggling to see how this has any connection at all to the issue of limiting standing in JR.
Yes, but what I “go on about” is more important than the etiquette of the internet of staying on topic. Also I fail to see how the call for Grayling’s resignation was about “housing law news and comment” which is the expressed purpose of this website, and it seems to me that you use the criticism of “off topic” to dismiss without consideration the views of anyone who has the temerity to challenge an “off topic” comment by one of your ‘in’ crowd. Still no-one has actually challenged anything I have said or commented on my suggestions for improving the lot of people with disputes that need resolving in this country. Which is more important than staying “on topic”.
Michael
You can address your suggestions for improving things on your blog (although I haven’t actually seen any suggestions per se). But this is my blog, and bluntly, it doesn’t exist as a paddock for you to give your own hobby horses a bit of a trot. On the other hand, I get to ride my hobby horses here as much as I like, it being, well, my blog. That said, the scope of JR and standing for JR is very much a concern for housing practitioners. You might note one of Grayling’s targets for criticism was the Bedroom Tax JR.
And I can’t actually see any off topic comments to which you responded, at least that weren’t already responses to you.
I think we leave it here.
It reads like (yet) another of this government’s policies to turn back the tide of change of the last 15 years. I am not opposed to a lot of it though so much is so poorly thought out, but I would rather see costs used to allow people to have their day, but that the spurious and ill merited risk a huge bill for costs, the other side’s and the courts. I would rather see the courts run at a profit, and let the well heeled idealogs ( and large corporate litigation) pay for the privelage and take that profit to fund mediation and arbitration for the less well off. I accept that this might be just as hard to implement- exceptions and rules…. :)
once again, giles i find myself agreeing with you (except where you describe your right above to ride your hobby horses on your blog – i agree you have that right, but i don’t think that’s a fair indication of what you do here. it really is more useful – and if anyone is thinking of commenting that it sounds like a load of ass-kissing, well, tough – i have a right to think this is a pretty good blog.)
it is brazenly and cynically making it harder for criticism (whether justified or not) of the government of the day to be heard. it is contrary to the rule of law and therefore horrific for justice and the proper working of the legal system in the country. it is thus entirely improper for a justice secretary to implement it. and entirely undersandable why this bunch of charleys have done so.
now (having followed your advice to comment in anger) where does this get us? the comments boards at the daily fail (and even gawdelpus the grauniad) are pretty much rammed with those who opine that us lawyers get our own way all the time cos we’re overpaid and overprivileged (and maybe we are) – so how do we get our own way on this one?
there are senior judges pretty grumpy about it not just chippy hedge-lawyers like me. but where now? in the trumpeting of success (at what looks worryingly like a tactical climb-down from a proposal they knew they’d never get away with anyway) of the removal of price competitive tendering in crime, this massive blow to a functioning rule of law is coming almost by the back door.
i wish i had a plan – even a stupid one.
People who argue that an issue or government policy is right or self evident underestimate that when it is not, it is the Courts that might stand in the way. This policy is contrary to the constitutional position on the separation and balance of powers of the modern era, and opens the door to a government “ that can do anything to you”.
Perhaps the legislators should be taking a hard look at the poor service that the civil service has given us, time and time again, in drafting legislation, the costs and funding of the Courts and how we handle smaller day to day disputes.
It is so sad when comments about legal changes that are potentially very significant and wide are reduced to nit-picking about some specific cases. I thought the point was about the rule of law and our famed constitutional division of powers and check and balances. As an academic lawyer but one who also has a consultancy in employment law I find Grayling’s role and proposals very sinister. I was unaware of the collusion by Gray’s Inn. However, my main point is that Dicey might be turning in his grave; Stephen Sedley is right and we have every reason to be concerned by this development. Employment rights have taken a terrible bashing in recent months. Many changes seem to be at variance with EU legislation and case-law. Does this mean, if you have concerns that might be judged political you can’t challenge a particular decision? If so-our ‘division of powers’ is lost.