Upholding the rule of law

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Friday, March 25, 2016
Richard Honey


What is the future of Conservative justice policy, wonders Richard Honey

The Conservative Party stands for upholding the rule of law. It believes that there should be checks on the power of the state and that the liberty of the individual should be protected.  As propositions, these ought to be uncontroversial. They ought to be the foundation of any Conservative justice policy. In their publication Churchill’s Legacy, Jesse Norman and Peter Oborne set out the historic context of the Party’s commitment to the rule of law. They show that “freedom under law, restraint on the power of the state and a deep understanding of the link between individual liberty and private property, are based on ancient conservative beliefs”.

More recently, policy under the Coalition government gave rise to questions about what a Conservative approach to justice should be. The 2006 ‘Built to Last’ statement of the values of the Party said that it should cherish freedom and stand against an overpowering state; Conservatives should be “hard-nosed defenders of freedom”. In his 2009 book, The Assault on Liberty, Dominic Raab – now a Justice Minister – wrote about the importance of judges acting as a check on the legislature and the executive and explained that the basic idea of placing checks on the power of the state, in order to preserve the freedoms of the citizen, was rooted in our history.

This approach was followed in the 2010 manifesto, which contained policies to “restore our civil liberties” after “Labour have subjected Britain’s historic freedoms to unprecedented attack”. In the realm of foreign affairs, it said that “liberal Conservative principles” included “supporting human rights and championing the cause of democracy and the rule of law at every opportunity”. 

Few would take issue with this, no matter where they sit in the spectrum of views within the Party. But there is a risk that the point is so obvious it could be overlooked in practice, especially when the Party faces the harsh realities of government. The changes to judicial review in the Criminal Justice and Courts Act 2015 provide a useful case study of whether the Coalition government followed the approach the Party so clearly set out in opposition.

Judicial review is the main way in which a commitment to the rule of law can be enforced. It provides an effective means of seeking to hold the state to account.  It allows those with an interest in a decision or action by the state to ensure that it is taken lawfully, rationally and fairly. Restrictions introduced by the state on the ability of citizens to seek to enforce the rule of law are rightly regarded with suspicion. In a speech in to the CBI conference in 2012, the Prime Minister said the government would be “cutting back on judicial reviews”, seeking to target those which were “completely pointless”, “time-wasting” or “hopeless”.  Such aims would not be controversial, even amongst lawyers. Implementing the policy fell to Chris Grayling; he pursued the reform of judicial review vigorously.

When it came to the legislation, the reforms did not target “pointless” or “hopeless” cases. The reforms were different and much more wide-ranging. The changes introduced by sections 85 to 89 of the Criminal Justice and Courts Act 2015 were essentially financial provisions. They introduced considerable disincentives to claimants based not on the merits of a case but on their financial position.

The amendment in section 84 on the likelihood of a substantially different outcome being achieved if the decision was to be re-taken was a very important change, barring a claimant from bringing a judicial review or obtaining any relief from the court, even merely a declaration that there had been unlawfulness. This went far beyond dealing with what could be said to be “time-wasting” cases.  It will protect the state from any consequences, even when it acts in a way which is plainly unlawful. 

This ought to be an alarming proposition to any Conservative, given the importance to the Party of upholding the rule of law.  Whilst the legislation was controversial in the House of Commons, it was passed with little dissent from Conservatives – and the support of the Liberal Democrats in the Coalition.

In the House of Lords debate on the Bill, the conflict between these provisions and a traditional Conservative view of justice policy was exposed. Lord Faulks, speaking for the Government in October 2014, recognised that judicial review was “an essential component of the rule of law”, but pressed the legislation as it had been passed by the Commons. The Bill ping-ponged between the Lords and the Commons in late 2014 and early 2015, largely due to the changes on judicial review.

A number of Conservative peers spoke against the reforms, for philosophical as well as practical reasons. Lord Deben said he thought judicial review had made him a better and fairer Minister. It was also reported that he said that it was unacceptable for the system to prevent the government being held to account in the courts where it acts illegally. Lord Mackay of Clashfern said in the Committee debate on the Bill in July 2014 that “the idea and doctrine of judicial review is extremely important and very precious”.  He said that he was “not at all in favour of putting any more difficulties in the way of a proper litigant applying for judicial review than exist at the present time”. 

As examples, these contributions from very experienced former ministers show that there is a strong Conservative case for allowing vigorous judicial review, even from those on the receiving end of challenges.  The spectre of the ‘judge over your shoulder’ makes for better government. 

With the changes to judicial review, and indeed to legal aid, introduced by the Coalition government, it is hard to avoid a conclusion that recent justice policy has cut across the Party’s historic commitment to the rule of law.  This difference has been brought into focus by recent speeches by members of the new Conservative government. In his speech at Runnymede in June 2015 to celebrate the 800th anniversary of the signing of Magna Carta, David Cameron explained why he believed that “the limits of executive power, guaranteed access to justice, the belief that there should be something called the rule of law” were “sewn into the fabric of our nation”. The Prime Minister explained why “liberty, justice, democracy, the rule of law” were all things we should hold dear.

Appearing to signal a change even more clearly, it was reported that, in an address to civil servants soon after the election, the new Lord Chancellor - Michael Gove - said that it was one heaviest responsibilities of all to be responsible for our justice system and upholding the rule of law, because it was upon the rule of law that civilisation depends - protecting the weak and the vulnerable from oppression and safeguarding the rights and the liberties of every individual. In a speech on 23 June 2015, Michael Gove said that “the rule of law is the most precious asset of any civilised society”, as it made sure “that when those who hold power abuse it, they can be checked”. Judicial review was cited as being one of the principles of the rule of law.

In the foreword to a consultation on the implementation of part of the 2015 Act in July 2015, Michael Gove said: “Without the rule of law power can be abused. Judicial review is an essential foundation of the rule of law, ensuring that what may be unlawful administration can be challenged, potentially found wanting and where necessary be remedied by the courts.” The tone of the evidence Michael Gove gave to the Justice Committee on 15 July 2015 was markedly different from what had been said by his predecessor, including in particular on criminal legal aid and access to justice in employment cases given the increase in fees. The current Lord Chancellor appears genuinely to understand the significance of such policies for the rule of law, and the risks that they pose if the effect on limiting access to justice is too great.

Michael Gove knows something about judicial review.  As Secretary of State for Education he was on the receiving end of a challenge by five local authorities when he stopped the Building Schools for the Future Programme. In a statement in February 2011, Mr Gove said that he was “happy” to comply with the Court’s ruling requiring reconsideration.  This was rather different in tone from the reaction of some ministers over the years to losing a judicial review.

It is perhaps unlikely that the changes introduced by the Coalition government – to judicial review, legal aid, and court and tribunal fees – will be undone.  But it does seem that the recent comments from the new Lord Chancellor signal a return to a more sophisticated, and a more Conservative, approach to justice policy: one based upon doing all that can be done to uphold the rule of law. Speaking of an amendment in a debate on the Bill in December 2014, Lord Deben said: “I hope that real Conservatives will support it because it is about the rule of law”.  This should be the test of Conservative justice policy in the future. 

Richard Honey practises as a barrister in the fields of public law and environmental law at Francis Taylor Building.

This article was originally published in Crossbow, the Bow Group Magazine - Autumn 2015 on 11/11/2015. Published online 25/03/2016