The politics of Judicial Review

Judicial Review developed in the 1960s as a mechanism for questioning and appealing against government decisions. It can be used by individuals to challenge a decision against them, for example if their asylum claim has been refused, and also by organisations, e.g. if they want to argue that they should have been awarded a government contract.

Many organisations also support individuals to make appeals by Judicial Review, and use this to campaign for change. By working with lots of people who are encountering the same problems, they are able to build up evidence of systemic injustices. This is how Detention Action managed to end the fast track process for asylum appeals in 2015, and how the Just for Kids Law was passed which makes sure that 17-year-olds in custody are treated as children and provided with an appropriate adult.

Since 2010, there have been a number of changes which limit the use of Judicial Review, including:

  • making many individuals ineligible for legal aid
  • reducing deadlines for challenging certain kinds of decisions
  • adding new residence tests
  • changing the funding rules so it is harder to claim for casework costs
  • lifting the ‘automatic cost caps’ for environmental cases

We’ve also seen increasingly negative discussions of Judicial Review by government ministers. For example, Iain Duncan Smith attacked the Child Poverty Action Group for legally challenging housing benefit reforms in 2011, and Chris Grayling wrote an article criticising organisations who use it “as a legal delaying tactic for something they oppose”, or those who see it as “a promotional tool for countless left-wing campaigners”.

In 2013, the government consulted on other changes that would stop voluntary organisations from taking out Judicial Review unless they had a ‘direct interest’, rather than “persons who had only a political or theoretical interest, such as campaigning groups”. This was a new kind of justification – whereas previous changes were said to be necessary to reduce costs, the proposals around ‘direct interest’ were specifically about stopping Judicial Review being used as a tool for making collective claims rather than just individual ones.

I think tells us a lot about how attacks on political action work. For these critics, Judicial Review is only a legitimate if it used by individuals – as soon as it is used to identify wider patterns or to make collective claims it becomes illegitimate ‘political’ activity. There is no recognition that ‘the system’ might actually already be extremely unfair against particular groups, and there is also no recognition that the individuals who are most likely to get an unjust decision against them are the least likely to be able to pursue a legal case without support. And then anyone who provides this support is seen as only having a ‘theoretical’ interest, even if they may actually see themselves as ‘directly affected’ because they are part of the same group e.g. if they are both asylum seekers, both Muslims, or both non-native English speakers.

It isn’t yet clear how the current government will treat Judicial Review, but we can probably expect more restrictions in the coming years. How this will impact on campaigning will depend on whether civil society organisations are willing to defend not only the rights of individuals to appeal against government decisions, but also the rights of groups to use Judicial Review to make collective claims even if this is being delegitimised by labelling it ‘political activity’.

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