Very quietly, the coalition tries to dismantle judicial review

When the local council gave permission to put up a 66 metre wind turbine next to the home of Chris and Julia Holder, it initially seemed they were powerless to stop it. Despite 1,125 letters of objections, the plans went through. It was judicial review which gave the couple the ability to fight the case in the Court of Appeal.

When the Department for Education stripped headteachers of their discretion to approve absences during term-time, a group of parents suddenly found they couldn't afford to take their kids on trips overseas. They used judicial review to challenge the decision.

When Sefton Borough Council refused to fund care for elderly Ms Blanchard until she'd diminished her savings to £1,500, it was judicial review which ended up finding the policy unlawful. The decision forced 120 other authorities to review their budget decisions and saved vulnerable people from having their savings slashed to pay for care.

Judicial review sounds boring. You shouldn't put it in a headline, as I have, because people won't click on it. You can’t mention it across a dinner table because everyone will stare at their plate and wait for you to shut up. But it is one of the most powerful tools citizens have over their government. In almost every case of injustice by the Home Office I've come across – especially in relation to immigration and asylum – it is judicial review which allowed the most vulnerable people in the country to challenge the most powerful.

When Chris Grayling was found to have turned legal aid into "an instrument of discrimination", it was because of judicial review. When two immigration officers detained, shouted at, bullied, harassed, imprisoned and conspired against an innocent Indian mother, how did her family fight the case? Judicial review.

So of course it should come as no surprise that the government is trying to dismantle it in the Lords this afternoon. They will do so not by banning it or anything as obvious as that. Instead they will do what the coalition always does: price it out. They will make it too expensive and risky for anyone but the most reckless and wealthy to contemplate.

As shadow justice minister Andy Slaughter told

"Judicial review is an important constitutional method in which the individual can hold the powerful state to account. The public would take a very dim view if any politician sought to undermine that fundamental principle for their own narrow political advantage. Chris Grayling should heed this warning and reverse his plans to curtail judicial review before it is too late."

Or as Bar Council chairman Nicholas Lavender said:

"If a government department or local authority did something you thought was unlawful, like stop your business from trading, close your mother's care home or relocate your child's school, what would you do? Judicial review is an important tool to stop dodgy decision-making by public authorities. It is fundamental to our system of justice and the rule of law that members of the public, including the weakest and most vulnerable, have an effective means of scrutinising and checking executive power."

Part four of the criminal justice and courts bill tries to dismantle judicial review through a four-pronged attack. First, it restricts the use of protective costs. Second, it exposes friends, relatives and associates of a claimant to financial costs. Third, it makes charities and NGOs who get involved in a case liable for costs. And fourth, it shields public bodies which have acted unlawfully from public scrutiny.

Protective costs limit how much of the other side's legal costs you have to pay if you undertake the case. Without it, the financial costs of pursuing judicial review become very daunting. The bill prevent judges granting protective cost orders until permission is granted, a stage which already requires lots of expensive legal work to get to. It's not even a problem – only a handful of these orders are granted a year anyway.

Prong two of the attack makes claimant's friends, colleagues, family and associates – anyone who might be able to help them financially, basically - liable to the legal costs. The emotional impact of this is severe. Someone may be willing to risk their own wellbeing and livelihood for something they believe in, but it feels entirely different if you’re risking the livelihood of those around you.

The measure against charities and NGOs is basically an attack on expert commentary. You can see why. Officials at the Ministry of Justice always seem averse to hearing from experts, because experts so rarely agree with them. As things stand, they can only contribute expert advice and guidance with the permission of the court. Making them liable to costs just freezes out people who know what they're talking about from participating in the legal process.

Finally, a no-difference threshold will mean authorities can escape legal challenges even when they’re plainly acting improperly.

Lord Pannick, Lord Woolf, Lord Carlile, and Lord Beecham are all tabling amendments trying to halt the changes. They are right to do so. This is an assault on accountability, scrutiny and civil society's participation in the political process.

When David Cameron first announced the plans he said:

"Consultations, impact assessments, audits, reviews, stakeholder management, securing professional buy-in, complying with EU procurement rules, assessing sector feedback…this is not how we became one of the most powerful, prosperous nations on earth. It's not how you get things done. When you have lobby groups lined up to criticise every action you take; parliamentary select committees ready to jump on every bump in the road; then the rational choice is to be cautious – even over-cautious. But for the sake of our country's progress we have got to cut through this."

This is the Shanghai effect. Ministers go to China, they see an extraordinary level of change and development, proceeding at a pace they can only dream of. It's a skyline that seems to change in real time, as you stare at it. Then they return to the UK, where the debate over high speed rail or a new runway drags on for years, and they dream Chinese dreams of scale and efficiency.

But democracy is not efficient. If one wants true efficiency, one quickly gives up on freedom, hence the fascist insistence that they can get the trains running on time. The drive to get rid of checks and balances is a fundamentally authoritarian instinct.

A coalition which came to power on a civil liberties ticket is now dismantling one of the most powerful weapons citizens have to hold power to account. It is a boring term, more suited to geeks than protestors. But we should not stare down at our plates. Once judicial review goes, we'll never get it back.

Critics frozen out of MoJ as Grayling pushes ahead with child warehouse plan

Article updated - see below

If you want to get Chris Grayling's attention, you need to appear in the Daily Telegraph. That's what he reads with his breakfast cereal. Apparently it's the only newspaper he cares about.

Campaign groups took note of that as they tried to halt the creation of massive child prisons ahead of today's debate in the House of Lords. Their letter to the newspaper won the attention of Grayling's colleagues, Andrew Selous and Simon Hughes, who wrote to them to invite them in for a meeting.

But they didn’t invite all of them. The Howard League, of course, was rejected, along with a few others. The Howard League is persona non grata at the Ministry of Justice (MoJ). Grayling thinks they’re some sort of left-wing pressure group, rather than a critical voice from civil society. He imagines himself in a manner which is not dissimilar to a Chinese bureaucrat, conspired against by imaginary enemies.

We don’t know which other signatories were rejected, because the MoJ won't say. It could be Liberty, or the Prison Reform Trust, or Action for Children, or the Royal College of Psychiatrists, or any of the other groups who are intensely uncomfortable with the proposals.

When those barred from yesterday's meeting asked who made it in, officials refused to tell them.

"Thank you for your email," the MoJ reply said. "A selection of organisations working in the youth justice field were invited by Andrew Selous and Simon Hughes to discuss the secure college.  In particular, ministers are keen to hear from those whose views have not perhaps been a matter of public record or as well-known, and/or who might not have had a chance to discuss matters with ministers previously. Therefore, we are keeping the cast list for the meeting to those who have received an invitation."

All the classic MoJ traits are here: secrecy, an aversion to criticism, pushing on regardless of the evidence.

One might ask why the MoJ invited critics to discuss it at all, but when it comes to the child prison proposal critics are all you're likely to find. The plans go against everything we know about what works: small, family-style residences with a focus on rehabilitation.

Instead, we are building warehouses, dubbed 'secure colleges', to house 320 people, far away from home, at a cost of £85 million. Use of force will be a central part of the regime, even though the court of appeal found it to be unlawful in 2008. Chris Grayling's draconian approach to penal policy means violence is making a come-back. Restraint will be allowed "to maintain good order and discipline where a young person poses a risk to maintaining a safe and stable environment" – a definition so broad as to be applicable for the most minor of indiscretions.

We know this is dangerous. Gareth Myatt, 15, choked on his own vomit when restrained. An inquest found he might be alive if the youth justice board had carried out proper safety checks into the restraints staff were trained to use. Around the same time, 14-year-old Adam Rickwood became the youngest person to die in UK custody when he hung himself after being restrained by four adult carers at Hassockfield secure training centre.

When the Howard League published an independent review of the use of restraint against children by Lord Carlile he found staff were too quick to resort to violence and that it was disproportionately used against ethnic minority children and those with learning difficulties.

Lord Ramsbotham, the former chief inspector of prisons, has put forward an amendment today demanding that "no secure college may be established until comprehensive rules on the operation of secure colleges, including the use of force and the treatment of young persons with mental or physical health needs, have been made".

The joint committee on human rights was similarly critical, demanding that the bill be amended "so that reasonable force can only be used as a last resort, only for the purposes of preventing harm to the child or others and that only the minimum force necessary should be used".

The list of experts queuing up to criticise the warehouse plan goes on and on. In his annual report yesterday, the current chief inspector of prisons, Nick Hardwick, said:

"This secure college will hold about a quarter of all children in custody and it will be challenging to provide these very troubled children with better education than that delivered in YOIs [young offenders' institutes], where provision has improved significantly.

"I am concerned that the plans do not yet provide assurance that they have considered and will be able to adapt to the changes in the size and complexity of the juvenile custody population."

Experts are particularly concerned that the institution will house children as young as 12 with much older teenagers, with some warning it is "a recipe for child abuse".

The children's commissioner raised the alarm over the size and distance from home of the institutions, the age of the inmates and the use of force. Universities and Colleges Union general secretary Sally Hunt said they would be "bad for young people, bad for justice and bad for taxpayers". National Union of Teachers general secretary Christine Blower said they took no account of young people's social or emotional needs.

But as ever, the MoJ presses on regardless. Where it does deign to meet its critics, it does so with the greatest secrecy. It continues to freeze out experts voices. And it presses ahead with plans which have been criticised by pretty much everyone. If the stakes were lower, the MoJ's predictability would be almost funny.

Update 12:35

I've just been forwarded a letter sent to Selous this morning by one of the groups which was at the meeting – the Centre for Crime and Justice Studies.

Director Richard Garside protest the absence of his colleagues from other groups, saying:

"I would like to put on record my concern that a number of the Telegraph letter co-signatories were not invited to yesterday's meeting. I hope the conversation that started yesterday might be continued with all interested parties at a future date."

The letter suggests ministers are prepared to move on the restraint issue. Garside says:

"I was also heartened to hear from you that the current proposals regarding control and restraint were open to revision."

He then suggests that the MoJ's open admission that reducing cost-per-capita is a primary motivation for the warehouse plan.

"The implications are clear: a few large custodial facilities holding most young prisoners, drawing in young people from many miles away. At our meeting yesterday your ministerial colleague Simon Hughes said that he would be keen to ensure young people are not bussed in from far and wide to populate the college. It strikes me as highly likely that bussing in will be the rule, rather than the exception."

Kenyan leader cites Cameron's human rights attack as he fights charges in the Hague

We knew it was coming, although the speed is surprising. On Monday October 6th, just days after Chris Grayling published Tory plans to scrap the Human Rights Act, a foreign leader was already using them to defend himself against charges of crimes against humanity.

In a speech to the national assembly and the senate, Kenyan president Uhuru Kenyatta cited David Cameron's human rights attack, in what he framed as a global battle between national sovereignty and over-enthusiastic courts. Ring any bells? The language may have been more colourful, but the core argument was the same as what we heard at the Tory party conference a few weeks ago.

Two days later Kenyatta would become the first serving head of state to appear before the International Criminal Court in the Hague on charges of crimes against humanity.

Kenyatta, who is accused of unleashing a wave of post-election violence during 2007 and 2008 which claimed 1,300 lives, has already received support from the African Union, which feels the court disproportionately targets Africans.

The Kenyan president's speech mapped out a pattern of concerns about the role of international courts over national sovereignty. Kenyatta said numerous authorities had raised concerns when the treaty of Rome created the ICC. They were worried about "the risks of undermining the sovereign equality of states and "these concerns remain valid to this day".

He went on to cite African Union efforts to safeguard serving heads of states and governments from human rights charges. And then he propped up his argument with the behaviour of the British prime minister.

He said:

"The push to defend sovereignty is not unique to Kenya or Africa. Very recently, the prime minister of the United Kingdom committed to reasserting the sovereign primacy of his parliament over the decision of the European Human Rights Court. He has even threatened to quit that court."

It's not the first time. Take Oleksandr Volkov, a judge in the Ukrainian supreme court, who was found by the European Court of Human Rights (ECHR) to have been dismissed unfairly by the government last year.

Article six, which guarantees the right to a fair trial, was violated in four separate ways, not least because of the lack of independence and impartiality shown by the high council of justice – the body responsible for appointing and dismissing judges. It also found evidence of MPs casting multiple votes when the matter was debated in the national parliament.

The ECHR demanded that Volkov be reinstated. It was ignored by the regime. The chair of the high council said:

"Great Britain would very much like to leave the European convention on human rights."

It was a shameful moment which provided further evidence of how Britain's treatment of human rights will bolster those around the world who aspire to dismantle them.

As shadow justice secretary Sadiq Khan told the Guardian at the time:

"The Ukraine government is saying: 'You know what? We don't really care. If someone like the UK, the beacon of human rights, can say two fingers to the European court, why can't we?' We now have a real example of one of the emerging democracies saying if the UK can do it, so can we."

The Conservatives are setting a shameful precedent in international politics. Britain has never been very interested in international affairs, so it will have little notion of the warmth with which an attack on human rights will be received in some of the more questionable capitals of the world.

Be that as it may, it was welcomed. And it will continue to be welcomed, by those who are not our friends.

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