Threat to Judicial Reviews by Tory reforms - implications for feminists having to seek legal means to preserve women's rights?

[stumbledin]

So okay, I am no legal eagle so may not be quite clear about this.

But it seems over the past few years, campaigning hasn't always been sucessful, but using the legal procedure of Judicial Review has been a positive option for women's rights.

" ... Judicial review is a process that enables citizens to challenge the lawfulness of decisions made by public bodies (such as government departments, local councils, and health authorities). The Human Rights Act is the law that enshrines the vast majority of the fundamental rights enjoyed by people in our country. ... "

Well it seems the Tories want to change (end?) Judicial Reviews.

A campaign has been launched today to challenge any undermining of this by a number of groups, including some women's groups.

humanrightsact.org.uk/why-were-campaigning/

Just thought I would alert those on FWR to this.

Thanks StumbledIn
Very pleased to see this being challenged
The blurb the government put out is chilling- tough shit if allowing people to challenge whether decisions should be remade is ‘inefficient’ it’s part of living in an accountable democracy you’d have thought..

www.gov.uk/government/news/government-launches-independent-panel-to-look-at-judicial-review

Thanks a lot for bringing this to our attention. I'll have a read through and sign the petition. Will pass it on.

Thanks.

We should be afraid of this proposal, even if it doesn’t relate to women’s rights. This government is making a frightening power grab. Shouldn’t surprise anyone, given who’s running it. Thanks for the info StumbledIn.

I read somewhere that it was Gina Miller’s Brexit case, the challenge to the prorogation of Parliament and possibly the 3rd runway at Heathrow JR that got up the government’s nose and prompted this, all of which are perfectly legitimate challenges in a democratic society. This is a very worrying development which needs to be resisted with great vigour.

Absolutely. I got to the point of asking for JR for a particular issue, only then did the government "find the paperwork". We got a positive decision after that.

They must be held to account.

@boatyardblues

I read somewhere that it was Gina Miller’s Brexit case, the challenge to the prorogation of Parliament and possibly the 3rd runway at Heathrow JR that got up the government’s nose and prompted this, all of which are perfectly legitimate challenges in a democratic society. This is a very worrying development which needs to be resisted with great vigour.

Yes, that is precisely why they're doing it. There has been talk of this for several years.

If you're in a red wall seat, now is the time to get lobbying and reminding your MP of how tenuous their seat is. Or if you have a Tory MP you know hates Boris (May and Javid, but there are many others).

It will take a lot voting against the whip to stymie this.

Also start writing to Starmer and your Labour MPs to make sure their policy is vote against rather than abstain.

Oh, and the cynic in me says if you're writing to a Labour MP mention Brexit but not women's rights - some of them are so entrenched in misogyny, their knee jerk reaction would be to sell out a democratic principle rather than side with a feminist.

Weren't JRs brought in to help iron out bad laws? Governments wanted swifter lawmaking but realised this could have implications; The JR had good beginnings, but then we learned to use. The law of unintended consequences. However, better lawmaking is always going to be the right answer

This was in their manifesto and, along with the women ´s right issue was my main concern at the last election. Indeed, access to justice is a massive issue, with it being virtually impossible without money and often ruinously expensive for those that do have enough. The issue suffers from the dual problem of being deeply unsexy and not relevant to most people as most people don’t need the courts and therefore it is difficult to get public interest and support. In addition, there is a general sense that only wrong ´uns end up needing courts or get in criminal trouble and therefore it is easy for Government’s to take funding away, both in terms of legal aid and in terms of how and whether costs are awarded.The Secret Barrister is illuminating on this. Though I am not sure that he specifically covers judicial review.

Having said that, every woman trying to divorce a controlling narcissistic husband will recognise the problem as going to court is simply not an option, because it is too expensive and they know that their husband will do everything they can to thwart the system and make it as expensive as possible.

For me, the women’s rights issue is so important because it is a foundational issue upon which the utility of any law relating to women relies. This issue of access to justice is also such a foundational issue and in many ways far more important. The laws and financial support that facilitate access to legal justice are not being removed, but eroded bit by bit. Each step is justified, then you look at the result and you see that access to justice is just an illusion.

Of course, there is the silver lining of a proliferation of crowd funding sites and charities providing financial support, but they rarely help those with unpopular cases or everyday problems.

I suspect it is the advent of Crowd Justice and similar sites that has spiked their gins. Like you say, if the funding is quietly removed the access to justice stands in principle but not in practice. Crowd funding upends that power imbalance. This is a despicable move.

Gins = guns

If anyone has any letter writing examples that I could riff off, I would be grateful (not a lawyer)
Anyone using public services is made more vulnerable by this. Surely if (for example) patient groups realise what this means for eg NHS funding decisions not to be able to be challenged in future, they will be up in arms.
Also it’s very difficult timing to be putting this out in the middle of an ongoing pandemic when many of those most affected will need to be concentrated on fighting that.

I used judicial reviews (or the threat of them) a lot in past jobs on behalf of service users as a method to force primarily local government to comply with the law

It was amazing how a local authority could go from insisting they had no legal duty towards a homeless person with mental health problems to recognising that they did when a judicial review was mentioned

judicial reviews are vital to hold the goverment to account locally and nationally

that the government often lose them shows that we have a poor Government who ignore their own laws

I dont think people have any idea of how damaging it would be if they were to go

Yes, the judicial review reforms are arguably much worse than the funding issues because it is reducing the circumstances in which It is even possible to tackle poorly devised laws. Taking away actual access to justice and Government accountability, not just the funding required to use it.

I agree with you and also there are so very many decision-making public bodies that can affect people who use public services. Issues can crop up with any of them.

And the goalposts are being moved all the time so challenges can suddenly become necessary. NHS CCGs who commission healthcare services for example. Because having tiny local CCGs commissioning NHS care was not an effective idea (as everyone told you at the time, Andrew Lansley and David Cameron) a lot of CCGs are now merging together, probably to be about the same size as the PCTs that CCGs wastefully replaced.

This means that (not that a postcode lottery is OK) but that CCG commissioning decisions that would have affected a smaller geographical area of patients, may now suddenly affect whole regions, etc. Patients need to have accessible legal recourse.

this is indeed worrying - it does seem like jr is our last chance in some cases so we can't lose that as well! I'll sign the petition.

The independent panel members are highly experienced so there is no guarantee that they will conclude what the Government wants.
I suspect the issue that is bothering the Government is whether or not the exercise of prerogative powers is justiciable rather than focussing on actions taken to force a council or health authority to fulfil an existing statutory function properly.

However, I believe that all branches of Government and the State should be held to account if they misuse their powers.

Thanks for highlighting this. I'd seen it as a potentially very worrying development but hadn't seen it discussed by anyone here or amongst gender critical feminists elsewhere, even though JR, or just the whiff of a possible JR, is v much part of our campaigning strategies. The key one perhaps.

Apart from women's rights there does need to be some method of challenging decisions taken, particularly when a Government has a large majority. (Not trying to derail into a discussion about democracy).

For instance wasn't it a judicial review that challenged Boris and cronies high handed proroguing (spelling?) of Parliament. If you have a PM like Boris (and Blair) who want to turn this position into a sort of Presidential position there has to be some way to challenge decisions. A lot of this talk of "innovation" is really a cover for turning what is meant to be democratically accountable government via parliamentary discussion, into Government by decree. At the moment we are having to rely on the House of Lords.

So yes crowd funding to enbable small groups and individuals to challenge seems to be something we must fight for.

Speaking as the parent of disabled children, JR is absolutely essential in holding the state to account when they fail to apply the law to provide for those children.

It's also the mechanism that was used to force the CPS to correctly apply the law on voyeurism, so even if a someone has consented to sex, that doesn't mean their partner has a right to secretly record them naked, or in the act. The CPS argued that it did; that consent was implicit. Which is clearly egregious and the JR found as much. A conviction has followed, and more will. It's also how the Centre For Women's Justice are trying to hold the CPS to account for the collapse in rape prosecutions. And it's how Harry Miller was able to challenge a subjectively offended person's view forming part of his own police record (a view which the judge described as being "on the outer limits of rationality") when he had no way of challenging it other than taking it to a JR. Without JR, no such mechanism exists at all. Injustice can't be held to account, and nor can the law be forced into correct application.

Judicial Review is the way we can ensure the law is followed. It's the only route the average citizen has to achieve that. Removal of this right makes all our other rights in public law fairly worthless, as they become unenforceable. If an LA or the CPS or an NHS trust decide they don't like a law, as it will cost them money or make them look bad, they can simply ignore it... and there won't be a thing anyone can do.

This is so, so important. Thank you for flagging it up.

@ChazsBrilliantAttitude

The independent panel members are highly experienced so there is no guarantee that they will conclude what the Government wants. I suspect the issue that is bothering the Government is whether or not the exercise of prerogative powers is justiciable rather than focussing on actions taken to force a council or health authority to fulfil an existing statutory function properly.

However, I believe that all branches of Government and the State should be held to account if they misuse their powers.

That's reassuring in terms of ability of a citizen to hold the state to the law (though clearly also frightening, given that the safeguard on executive power is a core part of the separation of powers and a key element in the checks and balances).

We live in scary times. The extremism on all sides, and refusal to accept diversity of thought, alarms. And the contempt for integrity and the rule of law... it feels new. Or at least, the open expression of that contempt for truth, however inconvenient, does. As Obama said a couple of years ago, politicians have always lied. They didn't double down on the lies when caught out, in the past.

Just agreeing with PP that JR is a key lever in any healthy democracy. Think of all the letters we write to MPs which get ignored all the time. Leaving it to Parliament depends on political favour and many important causes will never get that.

Judicial Review is the way we can ensure the law is followed. It's the only route the average citizen has to achieve that. Removal of this right makes all our other rights in public law fairly worthless, as they become unenforceable.

Yes.

It's a very significant concern. Just because it isn't being done specifically to fuck over women, doesn't mean it won't.