‘The professional campaigners of Britain are growing in number, taking over charities, dominating BBC programmes and swarming around Westminster.’ So ranted Justice Secretary Chris Grayling in the Daily Mail on 6 September.
This was the day that the Ministry of Justice (MoJ) launched its pernicious consultation, ‘Judicial review, proposals for further reform’.
Mr Grayling continued: Judicial review cases ‘are used by campaign groups as a legal delaying tactic for something they oppose. For example, they are used to stop a new development project – often delaying an innovation that would bring economic benefits and jobs’.
Of course we’ve heard this all before, with village greens. Just as Defra claimed, with little evidence, that village greens registration was being used to frustrate development, so the MoJ, with equally little evidence, is claiming that judicial review is being abused and is stopping development. And, in common with the evil changes in the law for greens, the reform of judicial review would stop the sound cases from proceeding as well as those which had little chance of success.
The MoJ proposes severely to limit the opportunity for organisations to appeal to the courts to right a wrong, so that only those who have a direct, personal interest in the matter may get involved. Often there is no individual who can act, and it is essential that a public-spirited charity can pursue a case in court.
The MoJ wants to make it difficult for organisations to be involved as third parties. This means the courts will lose out on expertise which would otherwise be available to them. The ministry intends to prevent organisations taking advantage of protective costs orders (PCOs) to limit their financial risk. The result will be that only those with deep pockets can seek justice, which is of course completely unfair and totalitarian.
There are many cases of organisations such as the Ramblers and the Open Spaces Society engaging in legal action to protect a public good. The MoJ is wrong to allege that judicial review is used as ‘a campaigning tool’ and ‘a means of generating publicity’. In fact, it’s very difficult to get publicity for court action because the issues are usually complex—it’s far better to use photo opportunities, stunts and rallies.
Lawyers too are outraged. Melanie Carter of Bates Wells Braithwaite has called it ‘a full frontal attack on charity campaigning’. There will be a fight.
The law relies on evidence. These proposals are not based on evidence but on dogma. Once again, this government tugs its forelock and bend its knee to the developer god.