Successful Supreme Court challenges against government policy and public authority decisions have dropped dramatically, leading to warnings that ministers’ attacks on lawyers could have a chilling effect on judges.
The share of civil court examinations, with the exception of immigration cases, which the plaintiffs have won from the total claims filed, has decreased by 50% compared to 2020, according to an analysis seen by the Guardian. The figure is 26% if the success rate is measured by the cases transferred to the last hearing.
The fall came amid criticism from ministers. Before taking office, Attorney General Suela Braverman criticized the “chronic and persistent assault by … judges” and said last year that in some cases they had “strained the principle of parliamentary sovereignty”. Lord Chancellor Dominique Raab has warned judges against “harpooning” government infrastructure projects.
Boris Johnson has doubled attacks on leftists after being forced to cancel his first scheduled flight to deport Rwanda last week following an order issued by the European Court of Human Rights (ECHR) to one of the people to be removed. The prime minister responded by accusing British lawyers of “supporting the work of criminal groups” that make it easier to cross the English Channel. Raab suggests that the judges at the ECHR have gone too far.
Responding to the review, Raab’s predecessor as Lord Chancellor, Robert Buckland QC, said: “There is certainly a downward trajectory for the previous year – whether this is a trend is probably too early to say. But I would be very worried if judges feel pressured or in any way respond directly to comments made by ministers – this would not be desirable or appropriate. “
Buckland was fired and replaced by Raab in September, with many believing he had paid the price for not going further in the judicial review bill to limit the challenges facing the government. In December, the Times was informed that Johnson planned to allow ministers to discard judicial review decisions they disagreed with, although a spokesman for the prime minister said it was “not an accurate feature”.
A report released this month by the All-Party Parliamentary Group on Democracy and the Constitution says ministers have done the wrong thing by questioning the legitimacy of judges when they have not achieved their own path, and that the Lord Chancellor and Attorney General have not managed to defend the judiciary – often the opposite – as the roles of couples became politicized.
Data on the Supreme Court obtained using the online analysis tool of the Ministry of Justice (MoJ) show that last year 31 civil judicial inspections (excluding immigration) were opened for the plaintiff, which is the lowest since the beginning of the available records in 2001, compared to 68 (previous low) in 2020.
Last year’s success rate was also the lowest in history, whether as a ratio of the total number of cases filed (2.2%) or those that passed the last hearing (30%). By comparison, the average success rate between 2016 and 2020 was 4.7% of the total number of cases filed and 38.9% of those that went to the final hearing.
Jolian Maugham QC, director of the Good Law project, which identified a decline in performance and has been involved in high-profile Brexit-related lawsuits against the government and the Covid personal protective equipment vendor band, said there was a risk the rule of law “could easily to become a relic for history textbooks. “
He said: “The data suggest a breakdown in the government’s judicial control. We cannot know that this is because ministers are talking about judges and the law – but it is not easy to identify plausible alternative explanations for the candidates. In private, the chief justices are worried. And they should be. ”
Other observers said there were already signs that the Supreme Court had become more conservative. An analysis published by the UK Constitutional Law Association comparing last year to 2020 suggests that the UK’s highest court now has a more “tendency to dismiss human rights claims” (only two out of 18 were successful last year). year) and to side with the public authorities’.
In January, Patrick Hodge, vice president of the Supreme Court, spoke at an event hosted by the Judiciary Project (JPP), one of the biggest critics of the alleged excessive judicial overload, although he said he “disagrees with some on the premises [of the JPP]“.
Jonathan Jones QC (Hon), a former head of the government’s legal department, said the reduction in the success of judicial review “sounds significant”, but it is difficult to conclude why it happened. However, he emphasized Braverman’s and Raab’s comments, adding: “We have also seen some more government-friendly language from the Supreme Court and one or two important decisions, e.g. for legal capacity ”(which limits who can challenge the alleged damage).
Conor Gearty QC (Hon), a lawyer and professor of human rights at the LSE, said that while judges were doing their best, “the number of victories has always been very small and we now see a drastic reduction in even that small percentage.”
He added: “It is difficult to avoid the idea that the background noise of hostility towards judges and courts, generated mercilessly not only by ministers but even by the Prosecutor General’s Office itself, has had an effect.
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“The apparent desire of the Supreme Court to limit the scope of the arguments before the court and to reduce the disputed socio-economic claims may also have some effect. These are troubling times for those who see accountability as an essential feature of democracy. “
A spokesman for the Ministry of Justice said: “Judicial review decisions are entirely a matter for independent judges, who now have greater powers to decide cases in a more flexible and practical way thanks to our reforms.
Three landmark cases for judicial review
In 2016, the Supreme Court ruled that parliament must give its consent before the government can trigger Article 50 and formally initiate Brexit, sparking criticism from ministers and the Daily Mail’s infamous “Enemies of the People” headline. The decision was upheld by the Supreme Court, which will rule in 2019 that Boris Johnson’s prorogation from parliament during the Brexit crisis is illegal, again angering the government.
In 2017, the Supreme Court ruled that labor tribunal fees of up to £ 1,200 were incompatible with access to justice, forcing the Ministry of Justice to abolish fees and entitle those who have already paid them to reimbursement. In a judicial review by the Unison union, judges also found that the fees were in conflict with the Equality Act 2010, as they disproportionately affected women.
Attempts by the government to impose a tax on the bedrooms of partners of severely disabled people, which would reduce their housing compensation by 14% for having a “spare” room, were declared illegal by the Supreme Court in 2019. Judges said the application of the reduction to a man referred to only as RR is a violation of his right to housing under the Human Rights Act. They said RR’s partner was severely disabled, so it was “accepted” that the couple needed an extra bedroom for her medical equipment. The effect was to reimburse full housing benefits to RR and at least 155 other partners of people with disabilities.
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