Article updated - see below
It was one of the more depressing political moments of last year. So-called liberal MPs voted en masse, with just one exception, to scrap powers which held the executive to account when they supported Chris Grayling’s reform of judicial review.
The word reform, as so often, is a euphemism. He was really putting a legal mechanism which allows citizens to take public authorities to court out of the reach of anyone who wasn’t exceedingly rich. Fortunately, the Lords proved more combative. They rejected the reforms for a second time and sent them back to the Commons.
That gives MPs a chance to reverse their previous position when the Lords amendments return to the Commons today. Will they take it? No. Most of them will have no idea what they’re voting on.
But those who bother to read into the issue must surely be circumspect about whether they should put their faith in Grayling again. Once they had handed him their support and sent the bill back to the Lords for the second time, it emerged he had misled the Commons during the debate.
Grayling claimed that courts would still be able to grant permission for judicial review cases under the new so-called ‘highly likely’ restrictions if there were “exceptional circumstances”. That was false. In fact the main purpose of the bill is to remove judicial control and replace it with a command system from Whitehall. Grayling apologised and has now introduced a last-minute compromise allowing permission if there is “exceptional public interest”.
It’s good to see the justice secretary giving ground on this, but his test is – predictably - still far above the threshold proposed by Lord Pannick and passed twice by peers, which is merely that a case should be in the “public interest”.
What’s the difference between the two standards? By having a higher threshold, Grayling’s compromise would allow more public authorities to get away with having broken the law. It would also pile on the work at pre-permission stage, turning it into a dress rehearsal for the case. Because solicitors don’t get paid until the case is given permission, this provides a harsh financial incentive for them to stay away from judicial review. It’s typical of the cynical way the government has pursued this reform: Instead of simply scrapping judicial review, they have made it financially ruinous.
Grayling made a second compromise on a Lords defeat, this time on the costs of groups helping fund the judicial review. Under current rules, courts have no obligation to consider the financial resources of the charities and NGOs who often fund judicial reviews. Under Grayling’s plans they would be obliged to do so. The clear and stated purpose is to stop charities from testing the legality of government actions. Grayling’s compromise is to offer an unspecified threshold value of contributions.
This is a slight improvement but the function of the reforms would be the same. It is intended to create a chilling effect so charities don’t challenge government decision-making. It is impossible for Grayling to offer a meaningful compromise without sabotaging his plans, because the aim of his plans is so morally toxic in the first place. It bears saying once again: the negative effects of judicial review reform are not inadvertent consequences. They are the entire point of the legislation.
Labour oppose the measures so all it would take for the Commons to stop these reforms is for the Liberal Democrats to vote against them. Given how servile and uninterested they were last time round, that seems unlikely.
Is there any ground for hope? Well, Julian Huppert asked some searching questions about the reforms during justice questions towards the tail end of last year, triggering Grayling’s announcement that he would offer fresh concessions.
Huppert is an interesting political figure, but he has been disingenuous on this issue. Given that he did not recognise what the Ministry of Justice were clearly doing in the first place, he is unlikely to maintain his critical faculties when presented with Grayling’s concessions. It’s very likely they will be enough to convince him. And if someone like Huppert isn’t turning his back on the reforms, the rest of the Liberal Democrat party certainly won’t.
Instead, we will probably be treated once again to the obscene spectacle of our elected representatives fighting unelected peers to degrade the democratic powers of citizens.
As Bar Council chairman Alistair MacDonald said:
"It would be ironic for democratically elected MPs to restrict their constituents’ ability to exercise their legal and constitutional rights. By failing to vote for these amendments they will be making it harder for those who voted them into power to exercise their constitutional and legal right to hold government to account and challenge public authorities when they get it wrong."
We should hope for the best today, but MPs have given us little reason for optimism.
The Commons once again passed the reforms to judicial review. The legislation will now go back to the Lords, where it is very likely to be passed by peers. Grayling was criticised by lawyers on his own benches however, including former attorney general Dominic Grieve and former solicitor general Edward Garnier, the latter of whom told the justice secretary the public interest clause was "moderately nonsensical".