When the Justice Secretary, Chris Grayling, first presented his reasons for the proposed reforms on BBC Radio 4’s ‘Today’ programme, broadcast on 6 April 2013, he was guilty of a shameless misuse of the statistics for judicial review cases brought in 2011. He argued that only 144 out of 11,359 applications were successful. This justification quickly unravelled when commentators pointed out that he was only counting the cases which succeeded at a full hearing and that if cases which were withdrawn before hearing were included, the success rate was around 40 per cent. For the latest consultation, the Justice Secretary adopted a different tack to argue for his reforms, one which has been greeted with even greater incredulity.

According to Chris Grayling, writing in the Daily Mail the day after he announced the latest consultation, the use of judicial review proceedings was a conspiracy by left-wing campaigners who were ‘taking over charities’ (‘The judicial review system is not a promotional tool for countless left-wing campaigners’, Daily Mail, 6 September 2013). He conflated this with justifying a new procedure to speed up planning applications, arguing that judicial reviews, such as those launched against the high-speed rail link from London to the North West (HS2), were used to ‘disrupt government policies’.

Large engineering projects like HS2 are generally opposed by people of all political persuasions, and those with none. Those who oppose such plans are united by the desire to resist what they see as the unnecessary destruction of the countryside. Many of them, because of the areas threatened, are likely to be prosperous property owners. LAG would suggest that, in most circumstances, many such people are inclined to vote for the Justice Secretary’s political party. Also, and again put this down to wild speculation on our behalf, we would guess that they would not be easily coerced into joining any left-wing conspiracy against government policy.

The Justice Secretary is guilty of an even greater misrepresentation in the same Daily Mail article when he cites the case of Richard III, and the dispute over where his remains should be buried, as further justification for his reform, which includes curtailing legal aid for judicial review cases. LAG would be inclined to agree that cases such as the one involving the bones of the dead king could be verging into the territory of abuse of process. It is right that the state should recover the full costs in such cases, as it should in claims brought by Russian oligarchs and the other litigation tourists whom the government seems so keen to encourage. It is fatuous in the extreme, though, to use a dubious case, probably pursued for publicity rather than legal reasons, to justify cutting off state aid for the poorest citizens seeking justice.

While clutching at straws to argue that legal aid and the judicial review procedure need reform, the Justice Secretary dare not argue openly that he wants to curtail a citizen’s right to hold the state to account; nevertheless, if these proposals are implemented that is what they will do. LAG believes that the current system, in which cases are funded before the permission stage, should remain. The advantage of this is that costs can be recovered and, most importantly, the public has access to a speedier remedy. Complicating the system, as is proposed, by the introduction of discretionary funding for cases which are not pursued in court proceedings risks creating a perverse incentive for practitioners to take claims to court, increasing costs and delays.

It is probably a fair assumption that it is not the campaigners from the prosperous suburbs and the countryside that the Justice Secretary really has in mind in his plans to reduce the use of judicial review. It is to be hoped, though, that they and their elected representatives in parliament might be able to appreciate the common thread that binds them to everyone, including asylum-seekers, people with disabilities and any others who use the judicial review procedure. It is part of the constitutional safeguards that hold the state to account and is something that all citizens should campaign to protect, whatever their political views.