31st March 2015

You may have heard of a legal process called Judicial Review which has been in the media recently but equally you may not have.  It is not the most attention grabbing phrase but nevertheless important to us all.

What is it?  Judicial Review is a legal process by which the Courts can review decisions of public bodies to make sure they are lawful. Public bodies should adhere to the law like the rest of us.

All sounds fair enough?  Perhaps so until I tell you the Government have made a number of attempts to restrict access to Judicial Review.

What restrictions were imposed? Judicial Review cases are very difficult to bring.  One significant difficulty is funding.  Legal Aid has funded a number of cases. The Government introduced regulations stating in many circumstances Legal Aid wouldn’t fund a case unless the Court later granted permission allowing it to proceed –  despite the Legal Aid Agency choosing to give funding in the first place – by no means a small hurdle to overcome.

Judicial Review cases by their nature are difficult and at the cutting edge of holding Government and other public bodies to account.  Public bodies never appear short of funds for their own legal costs.  It is often a David and Goliath contest.  Judicial Review is a fundamental part of our democracy and essential in achieving transparency and accountability.

Why did the Government seek to restrict judicial review? The Justice Secretary, Chris Grayling, proposed the changes.  Some have suggested he may have been motivated by the fact his own decisions have been repeatedly ruled unlawful by the Courts. An example of one of his decisions which was overturned was his policy which effectively banned books for prisoners (surely we all want prisoners to be rehabilitated if possible?)  The policy was despite the existing powers of prison governors to restrict the number and contents of parcels received by prisoners. Following a Judicial Review the Courts held his policy to be unlawful.

Fortunately on 19 March 2015 (as a result of a successful Judicial Review brought by Ben Hoare Bell and four others) the High Court quashed the new regulations about Legal Aid in Judicial Review. A good day for justice.

On completing the above article I discovered on 27 March 2015 – 8 days after the Court gave its judgement stating the regulations were unlawful – that the Government had passed the regulations again through parliament. The new regulations are slightly tweaked but much the same in many respects. The David and Goliath struggle goes on – watch this space….