JR Clampdown: the latest “poorly conceived” assault on the rule of law

23 Nov 2012

David Cameron this week told the CBI of a “massive growth industry” of judicial reviews and argued that business and development and the chances of economic recovery is being stifled. In an article for the Justice Gap, Ben McCormack found this “latest assault on the rule of law is poorly conceived, badly targeted and inadequately evidenced”.

Here are some extracts from Ben’s article:

This would not be the first government to feel frustrated at the fact that it is unable to do exactly as it wishes because, on occasion, a citizen persuades the courts that it is acting unlawfully. But the occasional loss in court and perhaps too a loss of political face is, as the late Lord Bingham pointed out (in The Rule of Law), an inescapable consequence of living in a state governed by the rule of law. Unable to effectively legislate away many of the core principles of public law or human rights, this government seems instead intent on trying to make judicial review as procedurally difficult for its citizens as is possible“ so that less of them think about trying it in the first place. Access to the courts is however a fundamental constitutional right.

That said it will be interesting to see just how the tightening of the JR limitation period will be achieved. It already requires claims to be brought promptly™ and in any event no later than three months after the making of the decision under challenge. What will follow – will claims have to be brought with alacrity? With haste? ASAP?

Most troubling about this is the idea that government (via its smart™ civil service) can be trusted to decide everything in a beneficent manner, and always in accordance with the law.

Tell that to the disabled residents of Birmingham, or the Isle of Wight, who had to go to court to have it declared that their local authorities decisions to restrict care provision only to critical cases were unlawful. Or to the homeless young mother who had to bring a judicial review to overturn her local authority’s decision that it did not have to give her and her children her a temporary home in a hostel. Or even the very large multinational who lost out to another very large multinational in a competition to run a railway, and had to go to court to force the government to run that competition again. In each case not so smart.

Ben McCormack is a barrister at Garden Court North Chambers.

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