Editorial: Defending justice defends us all
Marc Bloomfield
In planning the editorial for a monthly magazine, the number of relevant events that take place in the weeks between each edition can feel overwhelming. The past month has been no exception: a government reshuffle; stories about progress (or lack thereof) in EU negotiations; the surprise election result in Ireland; the coronavirus outbreak; storms causing flooding and damage; further announcements about looking into the role of the judiciary; the deportation of people who have lived in Britain for many years and have forged strong links here; criticism of the lack of help available to the Windrush generation; the decision to proceed with HS2; and a floated idea about a drastic reorganisation of the BBC.
Many of these issues may not seem to fall within LAG’s remit. However, climate change and the economy are of huge importance to us all. In communities around the country, extreme weather events have become more prevalent. If you live in an area that is constantly flooded, you will be asking questions of both local and central government. As the arguments over HS2 continue, even after the decision to proceed, communities outside London will be hoping that the government does pay more attention to the transport and economic needs in their area. Meanwhile, people will be thinking about the economic consequences of Brexit on their work and the area of the country they are in. People using local and central government services, particularly social security, will be fearing how much longer austerity measures will affect them.
People who are directly affected by government departments’ expenditure will have every cause to be concerned. With the Ministry of Justice’s budget facing a five per cent reduction on top of years of cuts, LAG fears that existing services – civil and criminal legal aid services and the court service in particular – will continue to struggle to meet need.
The prime minister has a considerable majority. He wants to get things done. The cabinet and the whole of parliament – the Houses of Commons and Lords – need to step up and ensure that proposals are fully thought through. It is often the case that politicians (like managers and directors generally) believe that they are right and they want to make a significant difference. But it is essential to consider weighty changes carefully and ensure that plans are fully scrutinised.
Which brings us once again to judicial review (JR). The Conservative party’s manifesto proposed a review to ensure that the procedure was not abused to ‘conduct politics by another means or to create needless delays’ (page 48). A spokesperson has indicated that the government will proceed with that review. The recent JR challenging the deportation of people sentenced to over one year in prison will not have made the process any more popular with the government.
We have said it before and will say it again: no government likes JR. Huge numbers of immigration and asylum JR cases were taken out of the High Court’s jurisdiction in 2013 and transferred to the Immigration and Asylum Chamber of the Upper Tribunal. Since then, unsurprisingly, the number of JR cases has fallen considerably. However, even since those cases were transferred, the number of JR cases has gone down.
There were 2,600 JR applications received in the first three quarters of 2019, down three per cent when compared with the same period in 2018.1Civil justice statistics quarterly, England and Wales, July to September 2019 (provisional), MoJ, 5 December 2019, page 11. In 2018, there were 3,600 applications received in total, down 14 per cent on 2017. In 2017, meanwhile, there were two per cent fewer JR applications than in 2016.2Civil justice statistics quarterly, England and Wales, October to December 2017 (provisional), MoJ, 1 March 2017, page 9.
So there has been a clear decrease even in the years after the immigration cases were moved to the Upper Tribunal. There are, of course, many factors that have caused this, but legal aid changes will be high among them. LAG will always be concerned about limiting the right of ordinary citizens to challenge the power of authority. There are already many obstacles built into the system that make it hard for people to challenge the government; seeking to bring in any further restrictions must, and will, lead to vigorous opposition. The Law Society and The Bar Council have already raised strong objections. Liberty has said that it will fight ‘at all costs’ rights becoming ‘conditional on status, on behaviour, on time, and on place’. ‘This only leads down one road: some rights for some people some of the time.’
If a prime minister with a large majority wants to press ahead with making changes, there will always be accusations against their opponents of NIMBYism or vested interests blocking ‘progress’. There is no doubt at all that connectivity across the country needs to be improved, that communities drastically affected by flooding need effective action to stop it happening again, that digitalisation of the courts service is needed, that thought should periodically be given to the constitution, and even universal credit at the very beginning might have been worth piloting. Careful thinking needs to take place, particularly as disruptors have been brought into government. By definition, they may lead to innovation or to problems.
Government ministers, backbenchers, opposition parties, the lords, select committees – there are many who can scrutinise proposals. We are fortunate that Sir Bob Neill MP is once again chair of the Justice Committee – it has very thoroughly investigated issues in the justice system and will continue to do so. In an age of impatience and soundbites, though, we all need to step up and challenge proposals that adversely affect our rights.

About the author(s)

Description: Carol Storer - author
Carol Storer was interim director of LAG from March 2019 to March 2021. She was director of the Legal Aid Practitioners Group for 10 years until...