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Courts won't save you from the Tories

High-profile judicial review appeals have become a favoured tactic among liberals. But we're not in the United States - and these campaigns risk distracting from far more important battlegrounds. 

December 01 2022, 15.16pm

Slowly but doggedly, the government has been moving to restrict judicial review. Campaigners have been fighting back, insisting that it is an essential form of struggle against an increasingly authoritarian state. High-profile judicial review cases invite breathless coverage in the style of a Netflix bully-versus-underdog drama, but the reality is underwhelming: the ability of the judges to strike down bad laws is limited, the results are often counterproductive, and the seasonal saga’s greatest effect is to distract from impactful and electoral/political campaigning. 

The blame here is not just with mainstream outlets generating drama for drama’s sake. Anyone who relies on Twitter to tell them what is happening in the courts is also likely to have a poor sense of who is winning. The same ritual repeats itself in any high-profile instance, on any topic, but let’s unpick one telling example on a matter of great urgency - climate change. 

Back in July, Jolyon Maugham of the Good Law Project (GLP) tweeted to his supporters “We won!” after the GLP had succeeded in obtaining an order that the government’s Net Zero Strategy was unlawful. Members of the public saw fellow lawyers tweeting back to Maugham, "Excellent work," "Congratulations," and responded with messages of their own. “Great result Jo,” “massive, vital victory,” “thank you for your amazing work.” The tweet was sent the day before we crashed through the 40°C barrier; thank God for the lawyers, many passing readers will have concluded: without them we really would be doomed.

The Net Zero Strategy is a blueprint for how Britain will meet its fossil fuel reduction targets. It plans for how the first 95% of cuts will happen and the present draft is silent as to how the last 5% will be achieved. The court has ruled that that missing detail must now be supplied. But the litigation ignored the most obvious flaws in the document: the Strategy pretends that planes do not land here, nor do ships dock in British ports. We insist that all oil and gas power stations will be brought to an end by 2035 even as the government continues to authorise the digging of new coal mines and expand existing gas power plants

Back in February 2022, the GLP reported another judicial review. Victory was declared when the High Court ruled that the appointment of Dido Harding as the Head of NHS Test and Trace during the pandemic had been unlawful. What GLP didn’t tell its supporters was that the judges were even more critical of GLP than they were of the government. The GLP’s founding objects had been too widely drawn, the judges complained, with the result “that just about any conceivable public law error by any public authority falls within its remit”. The balance between victory and defeat was shown in the costs order made at the end of the case, with GLP being required to pay 80% of the government’s costs. It is strange indeed to see the GLP declaring “victory” when they have been criticised by the court, their claim was dismissed, and they have to pay the government’s legal costs.

I do not make these points to criticise GLP. They are fighting governments that are introducing authoritarian laws by rigging election registers, criminalising protest and threatening to repeal our main Human Rights statute. They are indeed David against Goliath. My point is rather to explain to readers that after the Gina Miller cases, the government has moved hard - and to great effect - to prevent itself from losing political cases.

Then again, judicial review was never a strong shield against a determined government. Challenges to government decisions are among the costliest forms of litigation, being only available in the High Court. The basic rule of all litigation is that the party with the deepest pockets usually pays its lawyers most. The government has more resources than any charity, even the Good Law Project. The generous rates paid to government lawyers is a problem in civil litigation when losers have to pay the other side’s costs. Losing the Dido Harding case would have set the GLP back a quarter of a million pounds.

Access to judicial review was always narrow; now, it is being reduced further. The government introduced fresh legislation last year with the express purpose of reducing public access to judicial review. The measures in the Bill were relatively modest. What mattered was not what the Act said but the signal it gave that judges were in the government’s sights and, unless they did as ministers wanted, they could expect further laws which would weaken their independence. The judges saw that signal and acted on it. Since then, the proportion of applications for judicial review that have been given permission to proceed has fallen by half.

The best indication of the new mood was the decision in SC and CB, a Supreme Court case in July 2021, in which the Child Poverty Action Group tried to challenge the “benefits cap” which reduces benefits for large families below subsistence levels. The Court upheld that cap. 

Political litigation has become “increasingly common”, the President of the Supreme Court Lord Reed held, and is “usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament”.  Reed warned that if challenges of that sort were succeeded, the end result would be politicians removing unreliable judges from office: “judicial independence is accepted only if the judiciary refrains from interfering with political processes. If the judicial power is to be independent, the judicial and political spheres have to remain separated.”

The point is not that all judicial reviews now fail without exception, only that victories have become much rarer than they were even two or three years ago.

In promising we can have lawfare instead of social conflict, struggle without the tears, the likes of GLP want litigation to take a weight which it cannot bear. The law does not exist to satisfy discontented people or to give them the justice which social power has denied them, but to provide a means by which their grievances can be considered and contained. Law is not intended to be the locomotive of social change; rather its automatic brake. 

If we are serious about stopping climate change, we need to see more of Insulate Britain, Extinction Rebellion and the campaign against HS2 (the groups named by the government as the bodies its current Public Order Bill is intended to crush). They, rather than the best-briefed lawyers, are the social force which judges will have to placate. 

The same applies to any significant challenge to the order of the day and the powers that be. All the great movements of the past from the suffragettes to the anti-racist crowds of the 1970s contained a fair sprinkling of lawyers, but none made the recruitment of legal allies central. Their priorities were creating and proving the support of majorities. That choice did not prevent them from winning courtroom victories; but those victories were only made possible by the unquestionable fact of crowds demonstrating outside. 

Keep on crowd-funding if you must, but what change needs most is people: both in the streets and at the ballot-boxes.