Will the Lords stand up for judicial review?
Article updated – see below.
Tonight, the House of Lords will show whether it still has the confidence and discipline to challenge over-mighty government.
Peers are voting on plans to protect the government against legal challenge. Part four of the criminal justice and courts bill will restrict judicial review to only the richest people in society. It will pile on costs in the pre-permission stage, raise the level at which permission is granted and make it much harder for charities and other experts to get involved. As usual, the coalition does not ban things – it just prices them out of the reach of ordinary people.
Chris Grayling says he's been forced to make the move to prevent "left wing" campaigners and greedy lawyers frustrating government initiatives.
It’s not true. Any surge in judicial review cases is due to increases in asylum and immigration cases. A recent joint committee on human rights report said it was false judicial review had expanded massively.
So what does explain the attempt to dismantle judicial review?
This government very often breaks the law. And judicial review has proved effective at holding it to account. It is certainly much better at controlling the executive than MPs or peers. Judicial review is a threat to government power, so the government has decided to get rid of it.
Take the case of Cait Reilly. In 2012, Reilly was forced to give up voluntary work at a museum, where she was trying to shuffle her way into a paid role, so she could stack shelves in Poundland as part of Iain Duncan Smith's workfare scheme. She launched a legal challenge and the court of appeal ruled she had not been properly informed about the scheme.
That meant the government had removed benefits from Reilly and hundred of thousands of others illegally. It responded by doing something very revealing. It passed a piece of retrospective legislation legalising its actions in the past, a sort of statutory esprit d'escalier.
It was judicial review which prevented the secretary of state from pursuing this legal travesty. Mrs Justice Lang said the retrospective application of the 2013 law interfered with the right to a fair trial. There had been no consultation. There had been a lack of scrutiny by parliamentary committees. The move had not been "explained or justified" in parliament. She rejected the argument from IDS' department that it was merely clearing up a "technicality or loophole".
Judicial review also proved a very effective weapon against Theresa May, who was taken to task over cash payments to asylum seekers.
Asylum seekers are not entitled to work or benefits, so instead they are given £36.62 a week to survive. Theresa May refused to raise it beyond this poverty level.
Mr Justice Popplewell found May had "misunderstood and misinterpreted" Office of National Statistics data when setting the level of support, and that she had been "irrational in her decision making".
Jeremy Hunt found himself in the cross hairs when he ordered the closure of wards at Lewisham hospital. After ten minutes, judges found the health secretary had acted outside his powers.
Eric Pickles was taken to task for blocking solar energy and wind farms. Michael Gove for forcing through legislation which would violate equality legislation. A judge found his "abuse of power" was unlawful.
Grayling, however, has found himself the victim of judicial review more often than most.
It was judicial review which stopped the justice secretary from forcing legal fees on people suffering from mesothelioma, a horrible disease usually contracted by inhalation of asbestos at work.
The Legal Aid, Sentencing and Punishment of Offenders Act had forced people winning compensation claims to pay 25% of it in costs. But it had excluded mesothelioma sufferers, not least because they only have two years to live. Under the legislation, the secretary of state said they would be excluded until he had conducted a review.
He didn't. The Ministry of Justice said it launched a consultation. But those being consulted did not know they were being consulted. It was all fake. In partnership with the insurance industry, the department had tried to bluff its way through its legal obligations.
A similar technique was used when Grayling tried to tear apart legal aid. Mr Justice Burnett said the consultation process had failed to let lawyers comment on two reports and was so "unfair as to result in illegality".
A separate judicial review prevented Grayling from turning legal aid into "an instrument of discrimination". The secretary of state had tried to make legal aid dependent on whether you lived here, thereby denying trafficked women or abused domestic workers any legal representation. "It is not possible to justify such discrimination in an area where all are equally subject to the law, resident or not, and equally entitled to its protection, resident or not," judges found.
But the key to the case was in how Grayling had behaved. He had taken a piece of legislation – the Legal Aid Sentencing and Punishment of Offenders Act 2012 – and tried to skip the democratic process by adding laws to it.
You are allowed to add regulations to an act of parliament if they are consistent with the policy and object of it. But the 2012 law was intended to prioritise legal aid to the cases of greatest need, while Grayling's reforms would have done the opposite. It sounds like a technicality, but it isn't. It is fundamental to the system of law. By attaching regulations to a piece of legislation intended to accomplish something else, Grayling had tried to side-step the democratic process itself.
He is now facing the same difficulties with probation, which he is frantically trying to sell off before Labour can undo it. There are serious worries about the implications for public safety. IT systems have failed, case files lost and probation officers denied essential information about the people they are working in. The repercussions of these system falling apart are extremely dangerous. Two rival gang members, for instance, were invited into a probation building at the same time.
Judicial review is being used to try to stop the plans until the Ministry of Justice can show the result of safety tests into the new system.
What is the link which brings together all these examples? It is not the policies – they are irrelevant. It is about abuse of state power. Each example shows a secretary of state overstepping the limits of what they can do. They do not use the right data, or they fake a consultation, or they pass retrospective legislation, or they try to avoid passing laws altogether and force what they want onto the statute book.
Each instance shows a minister trying to escape scrutiny and debate, to avoid the checks and balances of democratic political life. They are all, in their tiny provincial way, examples of mini-tyranny. They are the type of political behaviour one must stamp on if one is to maintain a healthy and fair political system.
The coalition raised against the move is formidable. The Bar Council, representing barristers, the Law Society, representing solicitors, and Chartered Institute of Legal Executives (CILEx) in England and Wales, all oppose it.
In an extraordinary intervention this morning, eleven police and crime commissioners, including former solicitor general Vera Baird, wrote to the Times branding the plans a "potentially deep injustice". The bill would "increase the risk of unlawful administrative action going completely unchallenged," they wrote.
"Why does the government intend virtually to deny to ordinary people the right to ask the courts to protect them from the impact of poor public authority decisions, including poor decisions by government itself?"
Shadow justice minister Andy Slaughter commented:
"This is just latest in a series of significant interventions and attacks regarding the government’s reckless proposals for judicial review. Chris Grayling should scrap these proposals before it is too late and his party further undermine the rule of law."
The bill can be defeated. During last week's vote on proposals for secure colleges in the same bill, an amendment was passed limiting the damage of what the Ministry of Justice is doing.
The Lords has previously stood up against over-powerful government. During the New Labour years, when the Commons was even more useless than it is now, they were one of the bastions of accountability against the authoritarian impulses of Tony Blair and Gordon Brown. Now it is time for them to fight back once again. Those concerned with the health of British democracy will be watching closely.
Lords roundly defeated the government's reforms. An amendment rejecting the changes to judicial review was supported by 247 votes to 181 – a majority of 66.
The government was defeated again, by 228 to 195.
A third amdnment victory over the government, this time by 219 votes to 186. That's the lot. A comprehensive defeat for Chris Grayling.