Dramatic decline in successful High Court challenges to government policy Law

Written by Javed Iqbal

Successful challenges from the High Court to government policies and decisions by public bodies have dropped dramatically, prompting warnings that ministers’ attacks on lawyers could have a cooling effect on judges.

Proportion of civilians judicial reviews, excluding immigration cases, which plaintiffs won out of the total number of claims filed fell by 50% compared to 2020, according to analysis seen by the Guardian. The figure is 26% if the success rate is measured out of cases that were to be finalized.

The drop came amid criticism from ministers. Attorney General, Suella Bravermanbefore he joins pronounced against “chronic and constant intervention by… judges” and last year said that in some cases they had “strained the principle of parliamentary sovereignty”. the chancellor, Dominic Raabhas warned judges against “harpooning” of state infrastructure projects.

Boris Johnson doubled the attacks on “left-wing lawyers” after being so forced to cancel the first scheduled Rwanda deportation flight last week following an injunction issued by the European Court of Human Rights (ECHR) to one of the persons to be removed. The Prime Minister responded by accusing English lawyers of “contributing to the work of criminal gangs” that facilitated channel passage. Raab suggested that judges at the ECHR had exceeded.

In response to figures from the judiciary, Raab’s predecessor as Chancellor, Robert Buckland QC, said: “There is definitely a downward trend compared to the year before – whether that is a trend, it is probably too early to say. But I would be very concerned if judges felt pressured or in any way reacted directly on comments from ministers – it would not be desirable or appropriate. “

Buckland was fired and replaced by Raab in September, how many felt he paid the price for not moving forward in the judicial review bill to limit challenges to the government. In December, the Times was informed that Johnson was planning to let ministers throw out judicial rulings that they disagreed withalthough the Prime Minister’s spokesman said it “was not an exact characterization”.

A report released this month by the parliamentary group for all parties on democracy and the constitution said ministers had acted unfairly by questioning the legitimacy of the judges when they did not get their own will, and that the Chancellor and the Attorney General had failed to defend the judiciary – often did the opposite – as the roles of the couples had been politicized.

The figures for the High Court, obtained using the Ministry of Justice’s (MoJ) online analysis toolshows that 31 civil law notifications (excluding immigration) were found for the applicant last year, the lowest since available registrations began in 2001, compared to 68 (the previous lowest level) in 2020.

The success rate last year was also the lowest ever, whether it was a share of the total number of cases filed (2.2%) or those that went to a final hearing (30%). In comparison, the average success rates between 2016 and 2020 were 4.7% of the total number of cases submitted and 38.9% of those who went to a final consultation.

Jolyon Maugham QC, director of the Good Law Project, who identified the decline in the success rate and has been involved in high-profile judicial reviews against the government in connection with Brexit and The VIP course for suppliers of Covid personal protective equipmentsaid there was a risk that the rule of law “could easily become a relic of the history books”.

He said: “The data point to a breakdown in the judicial control of the government. We do not know that it is because of how ministers talk about judges and the law – but it is not easy to identify plausible alternative candidate explanations. Private are senior judges worried. And they should be. ”

Other observers said there were already signs that the Supreme Court had become more conservative. An analysis published by the UK Constitutional Law Association compared to last year and 2020, the UK’s Supreme Court now had more of a “tendency to reject human rights claims (only two out of 18 were successful last year) and to side with public authorities”.

In January, Patrick Hodge, Vice President of the Supreme Court, spoke at an event run by the Judicial Power Project (JPP), one of the main critics of alleged legal abuse, although he stated that “I do not agree with some of the premises [of the JPP]”.

Jonathan Jones QC (Hon), the former head of the government’s legal department, said the reduction in the success rate for judicial review “sounds significant”, but it was difficult to draw conclusions as to why this had happened. However, he highlighted comments from Braverman and Raab, adding: “We have also seen some more pro-government language from the Supreme Court and one or two significant decisions, such as job vacancies,” (which limited who can challenge an alleged injury).

Conor Gearty QC (Hon), a lawyer and professor of human rights law at the LSE, said while the judges did their best, “the number of victories has always been very small and now we are seeing a drastic reduction in even the small percentage”.

He added: “It is difficult to avoid the idea that the background noise of hostility towards the judges and the courts, which is relentlessly generated not only by ministers but even by the Minister of Justice himself, has had an effect.

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“The Supreme Court’s apparent desire to limit the range of arguments before the courts and cutting back on challenging socio-economic demands may also have had some effect. These are troubling times for those who see accountability to the law as an essential feature of democracy. “

A MoJ spokesman said: “Judicial review decisions are a matter solely for independent judges, who now have greater powers to resolve cases in a more flexible and practical way thanks to our reforms.”

Three landmark lawsuits

In 2016 the High Court ruled that Parliament should give its consent before the government could trigger Article 50 and formally initiate Brexitwhich led to criticism from ministers and the infamous Daily Mail “Enemies of the Enemies” heading. The decision was upheld by the Supreme Court which in 2019 would determine that Boris Johnsons prorogation of parliament during the Brexit crisis was illegalagain the government became angry.

That was decided by the Supreme Court in 2017 employment law fees of up to £ 1,200 were incompatible with access to justice, which forces the Ministry of Justice to scrap the fees and gives those who had already paid them the right to a refund. In the judicial review brought by the union Unisonthe judges also found that fees were in violation of the Gender Equality Act 2010 as they disproportionately affected women.

The government’s attempt to force bedroom treasure on partners of persons with severe disabilities, who would have had their housing allowance reduced by 14% to have a “reserve room”, was convicted of the Supreme Court in 2019. The judges said that the application of the reduction to a man referred to only as RR was a violation of his right to a home under The Human Rights Act. They said RR’s partner was severely disabled, so “it is accepted” that the couple needed an extra bedroom for her medical equipment. The effect was to restore full housing benefit to RR and at least 155 other partners for the disabled.

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Javed Iqbal

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