Freedom, the individual and the law

Judicial review provides a critical check on the power of the state. So why, asks Keir Starmer, is the Government restricting access to it?

As we approach the general election, all political parties are busily drafting their manifestos. If elected, these declarations of political intent will be relied upon by the incoming government to justify their decisions. And, of course, where promises are broken, they will be relied upon by opponents for political ammunition. Simple logic in a political democracy perhaps, but where politics and law tangle, things are not always so simple in practice. That is because the actions of governments, even when based on manifesto commitments, are not immune from legal challenge.

Over many years, citizens in the UK have won the right to challenge the decisions of the executive, including those of ministers, local authorities, other public authorities and those exercising public functions on the basis that the decision in question is not ‘lawful’. This form of legal challenge, known as judicial review, provides a critical check on the power of the state. So, for example, in the Witham case in March 1997, our courts struck down a decision of the then Lord Chancellor to increase court fees to a level that most people could not afford, citing the long established principle of access to justice. Better known is the case of the Gurkhas who, relying on the old military convention that the state supports those who risks their lived for our county, successfully challenged a refusal by the Ministry of Defence to let them settle in the UK.

Illustration by Modern Activity

Illustration by Modern Activity

From a very modest base the number of applications for judicial review has grown significantly. In 1974 there were just 160 applications in England and Wales. By 2000 this had risen to nearly 4,250, and by 2011 had reached over 11,000. The vast majority of these – as they are every year – are immigration and asylum cases. That said, the number of successful cases is actually very small, and has decreased over time: the proportion of cases that found in favour of the appellant at a final hearing has reduced from 12 per cent in 2000 to 1 per cent in 2012.

Nonetheless, by 2012, the Coalition Government had had enough and, controversially, moved to restrict access to judicial review: removing legal aid altogether for some types of cases and proposing raised costs and tighter procedures for other cases. This has flushed out a keen and important debate about the relationship between law and politics, which goes to the heart of what it means to live in a modern democracy.

To understand that debate, the history of the battle between citizen and state has to be traced back to at least the Second World War. Before then, although a good number of states had adopted constitutions which put a brake on executive power, the world-wide consensus was that states should be accountable internationally for what they did to each other but not for what they did to their own citizens.

When, after the Second World War, the full horrors of Hitler’s Nazi regime were laid bare, there was a fundamental shift in thinking. Surely, it was thought, there must be some international norms of decency which apply everywhere and protect everyone. And – in the realisation that a number of Nazi atrocities were committed with the full backing of the law in the sense that the powers that been had passed laws permitting persecution and discrimination – it was agreed that whatever norms were agreed, they had somehow to override pure politics.

In that spirit the Universal Declaration of Human Rights (UDHR) was adopted in 1948 – a simple set of standards and rights for mankind to cling onto going forward. In due course it was envisaged, these standards would be developed across the world. And so it came to pass.

Regional treaties, such as the European Convention on Human Rights (ECHR) and, subsequently, the American Convention on Human Rights and the African Charter on Human and People’s Rights, gave regional effect to the common standard of achievement set out in the UDHR. Famously British politicians participated fully in the drafting of the ECHR in Whitehall. They did so because they thought, and this is the irony in light of the current Tory assault on human rights, that they were drafting an instrument to reflect the values which we in this country took for granted and which had, they thought, been vindicated by our military triumph in 1945. They wanted what they thought were our values to be more widely respected.

Constitutions around the world were checked for compliance with human rights and redrafted or revised where necessary. It is a little known fact that when the British negotiated the independence of former Colonies in the post-war period, the European Convention on Human Rights was dropped (almost word for word) into the new Constitution of pretty well every country gaining its independence. While insisting that no Bill of Rights was needed in the UK, our forefathers and foremothers insisted that the entrenchment of human rights was a precondition to independence: the arrogant and complacent idea that human rights were needed abroad but not at home.

That arrogance and complacency put great weight on the shoulders of our judges. Unless the executive was to enjoy unfettered and unchecked power, legal principles had to be developed to protect the individual. These principles have, in reality, been unearthed (or made up) by our judges. Unwritten constitutional principles developed to set the limits of the state and protected basic rights. Whether it was (on indeed is) legitimate for unelected judges to restrain political decision making in this way has always been a lively issue to debate, but, frankly, in a country without a Constitution, there was not much choice.

Initially our judges were understandably very timid. Judicial review was very much an arm’s length exercise. Very few cases were brought and even fewer successes. In a landmark case in 1948 (referred to fondly by lawyers as the Wednesbury case), it was declared that a decision of public bodies could only be struck down if it was so unreasonable that no reasonable body could have made it. Trying to explain the principle to those most affected by it is not easy. Mental gymnastics, but a start!

Incidentally, although judges have always insisted that judicial review is a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached, the Wednesbury ‘unreasonable principle’ actually struck at the conclusion from the start. And, over the years, judges have become more confident and have been able to expand their remit into asking whether decisions are fair, as well as reasonable.

This development has caused tension from time to time between judges and politicians. While no government has ever (openly) argued that the executive should enjoy untrammelled power over its citizens, Ministers not infrequently grumble about the fact that unelected judges should not interfere with their decisions which, they claim, have political legitimacy. Whether our judges have, historically, been more willing to intervene in decisions made by Labour rather than Tory administrations was once a serious talking point. That debate reached its height in 1982 when Lord Denning accepted the arguments of a Tory Council and struck down the popular ‘Fares Fair’ policy of a Labour Greater London Council which relied on money raised by rates to keep transport prices affordable. However, in recent years, any charge of political bias in our judges simply does not stick and the debate has, in truth, pretty well died out.

Enter the Human Rights Act 1998 (‘HRA’). A very simple statute, the HRA allows individuals in the UK to enforce their rights in their local courts. It also requires public authorities to respect the rights of those that they deal with. Part of Labour’s 1997 commitment to a new constitutional settlement, it represents a new way of thinking about law, politics and the relationship between public authorities and individuals.

The rights protected by the HRA are also very simple. They include the right to life, liberty, the right to a fair trial, protection from torture and ill-treatment, freedom of thought, conscience, religion, speech and assembly, the right to marry, the right to free elections, the right to fair access to the country’s education system, and an overarching right not to be discriminated against. Pretty basic stuff, you might think. And you would be right. The rights protected by the HRA are mostly drawn from the European Convention on Human Rights, which, as noted above, was the World’s way of saying ‘never again’ in the aftermath of the Second World War were laid bare.

The significance is this. The HRA is in reality a constitutional instrument, albeit, unlike its counterparts around the world, not entrenched in our law (it can be repealed by a simple majority in Parliament like any other law). It complements the judicial review principles developed over the years by our judges, but gives them both a harder edge and democratic legitimacy. It is difficult to argue that judges should not measure executive decisions by reference to the HRA when Parliament itself passed the HRA. And, to top it all, the standards in the HRA that are used to hold the executive to account are not political standards in the sense that they were dreamt up by Labour when it introduced the Act, they capture and give effect to universal norms accepted across the world as defining the appropriate relationship between the individual and the state.

The relationship between law and politics is, therefore, arguably more settled now than at any time in our history. The executive has wide powers, which rely for their legitimacy on our democratic elections in which political parties set out in manifestos their political intentions. The law protects the individual from the executive according to universal standards.

Against that background, recent Tory proposals to repeal the HRA and even to exit from the ECHR, replacing it with the so-called ‘British Bill of Rights and Responsibilities’, threaten our democracy. If accepted they would remove basic protection from the individual and give greater power to the state. The debate about the relationship between law and politics has become, well, very political! The outcome of last year’s local and European elections has now intensified the debate. The UKIP challenge will no doubt push the Tories further in their plans to distance themselves from our obligations under the ECHR, which is still frequently wrongly described as an EU treaty. It also has the potential to unsettle Labour and tempt some to downgrade the party’s commitment to the HRA. That would be a grave mistake for a party which not only introduced the HRA but which also oversaw the ratification of the ECHR under Clement Attlee.

Time then for fundamental principles and clear political thinking. We live in an ever more divided society. Inequality has grown over the past 25 years and the financial crisis of 2008 has exacerbated the problem. Labour’s starting point for the 2015 campaign is a rejection of a society characterised by division. The Human Rights Act, with its emphasis on human dignity, individual freedom and equality, reflects the values that Labour stands for. Along with Bills of Rights around the world, the most important word in the HRA is the entitlement of ‘everyone’ to basic rights, which ensure that individuals from all walks of life have benefitted from the democratic principles it enshrines.

The case for the HRA is, accordingly, a strong one. It is a moral case based not only on learning from the history of some of the worst violations of human rights before and during the Second World War, but also on the here and now. If a new settlement based on social inclusion and greater equality is to be reached, the HRA should not be viewed suspiciously as a burden, but promoted as an instrument of social cohesion and public purpose. It defines the relationship between the individual and the state and keeps us all free.

Labour’s manifesto for 2015 should contain a strong defence of the HRA. Law and politics would be poorer without it.