Denial of justice
Stephen Knafler QC, who will be speaking at the Garden Court Chambers/LAG Public Law Conference on 28 June, writes:
Lord Chief Justice Holt wrote a series of celebrated judgments still read today. In Ashby v White (1702) 2 Ld Raymond 938, he said this: ‘If the plaintiff has a right he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy for want of a right and want of remedy are reciprocal.’
The laws of the United Kingdom create many rights but the most fundamental of all rights, without which the other rights have no value, is the right to be treated by the government in accordance with the laws enacted by parliament and the common law. Without the remedy of judicial review, however, that fundamental right is theoretical and illusory, rather than practical and effective – ‘a vain thing’, as Holt LCJ might say.
Indeed, the existence of accessible, effective judicial review is a key difference between the United Kingdom and many other countries, where they have enacted good laws (and, in this day and age, which countries have not?), but where, in practice, the state and its delegates can largely do as they please because individuals treated unlawfully do not have access to effective remedies.
In its thirteenth report of session 2013–14, The implications for access to justice of the government’s proposals to reform judicial review (April 2014), the Joint Committee on Human Rights has recorded how reassuringly enthusiastic the government, and the Lord Chancellor in particular, expressed themselves to be about judicial review: ‘The significance of judicial review to the rule of law is acknowledged by the government’s consultation paper itself, which variously describes judicial review as “the rule of law in action”, “a critical check to ensure lawful public administration”, “a crucial means of holding government to account” and “a critical check on the power of the state”. The Lord Chancellor and Secretary of State in his oral evidence to us also acknowledged the importance of judicial review to maintaining the rule of law, including by holding government to account for the legality of its actions’ (para 13).
But is this any more than Orwellian ‘double speak’? In an article published by the Daily Mail, on 11 September 2013, the Lord Chancellor described judicial review as if it was a fifth column activity – ‘a promotional tool for countless left-wing campaigners’, whose agenda was to ‘hold back our country from investing in infrastructure and new sources of energy and from bringing down the cost of our welfare state’ – all at the taxpayer’s expense, needless to say.
The Daily Mail article has a confessional air (‘In proposing these changes, I will no doubt be accused of killing justice and destroying Magna Carta’) and seems to represent the Lord Chancellor’s true opinion that judicial review is not ‘a critical check on the power of the state’ but a malign cancer on the body politic. Perhaps a little less malign, when brought by organisations such as the Daily Mail itself, which used judicial review (unsuccessfully) to challenge the Leveson inquiry, or the Countryside Alliance, which brought a judicial review (failed) to challenge the hunting ban. But organisations like that are always going to have the resources to achieve power and influence and, also, to gain access to justice, including judicial review.
The government’s proposals are politically divisive in their philosophy and partial in their practical effect, which is to drive a wedge between the justice system and the poorest, most vulnerable individuals. As Lord Bach put it, during the Motion to Regret moved by Lord Pannick, at the restriction of legal aid, advice and assistance in prison law cases: ’They are gradually destroying a civilised system of access to justice – one that was far from perfect but which worked in practice and was, frankly, not very expensive. In its place is emerging a world where the poorest and those without any power, including of course prisoners under this particular regulation, have nowhere to go to get the legal advice that they deserve and need. It is fast becoming a record to be ashamed of’ (Hansard HL Debates col 1285, 29 January 2014). Indeed, but worse: to restrict access to justice, and remedies, is tantamount to repealing laws enacted by parliament for the benefit of those affected, and removing those persons out of the common law.
The year 2015 will be the 800th anniversary of the signing of the Magna Carta, in recognition of which all four of the surviving originals are to be brought together for the first time in history, in the British Library. There, one will be able to read one of the three provisions of the Great Charter that remain in force: ‘To no one will we sell, to no one deny or delay right or justice.’ It is that right to justice, the right and practical ability to secure remedies in the real world, without which justice is ‘a vain thing’, that is imperilled now, as it has been so often in our country’s history.