Letter from a leftie lawyer: 11 October 2020

Independent review of judicial review law

In the next couple of days I must write my response to the government’s ‘Independent Review of Administrative Law (IRAL)’. IRAL follows  a muted Tory election pledge is said to ‘exist to consider options for reform to the process of judicial review’. It is ‘independent’ in the sense that it is chaired by Eddie Faulks (orse Lord Faulks QC a former government minister and side-kick of failing Grayling as Lord Chancellor, especially in his legal aid destruction phase). I have written previously about Faulks’s arrogance and stupidity when, as a Government minister, he replied to a question on legal aid for exceptional cases (the government’s then – and still – threadbare ‘safety net scheme’ determination scheme).

It says nothing of a government which claims to want an ‘independent review’ that it appoints one of its own to chair the review. On that basis should I boycott the review? It is an element only of a charade mounted by this dire administration? Yes, but I think I must reply. Faulks & Co may regard what I say as irrelevant; but I think I must respond.

And all this as the Prime Minister and Home Secretary together have plumbed further Trumpian depths in their numbing way as they decry ‘leftie lawyers’ and ‘do-gooders’ (a pejorative term which you’d have thought went out with the 1970s?). Of the Prime Minister’s ilk, in many ways, what does Faulks think of these ‘leftie lawyers’? He was once a practising barrister. He must owe part of his wealth to legal aid (he was at the bar at a time when legal aid lawyers were fairly paid). How often has he conducted a judicial review application, I do not know? I am not aware that administrative law was any real part of his practice. Can we ask him?

Lawyers and judicial review

It is not lawyers of any particular political persuasion who conduct judicial review claims. The law is there to protect victims of administrative error or oppressions at all levels. We ‘leftie lawyers’ (many, I am sure, are not very leftie at all) do it, not to make a great living nor from burning political conviction. We do it because we think it is important that the executive – from ministers in all departments, down to civil servants and council officials – should follow the law which Parliament has defined; that rights should be protected for anyone at any level of society; and that therefore the administration should be accountable to a judge where

It is as important that someone’s rights be protected as that their health be looked after; and that the individual’s rights to both are fully respected. A remarkable case which deals with both elements – health and rights – was R (W a child by his litigation friend J) v Secretary of State for the Home Department [2020] EWHC 1299 (Admin) (21 May 2020). W is a UK national aged eight. He and his Ghanaian mother (J) had been in UK since 2009. She was granted leave to remain on the ‘10-year route to settlement’ renewable each 30 months and on condition that she had ‘no recourse to public funds’ (‘NRPF’: ie she was not eligible for almost all state benefits, including for her child). As a result she and W had periods of destitution including ‘street homeless’. They moved house repeatedly. W had moved school five times. Home Office case workers’ guidance was that only if a person is actually destitute – not imminently destitute – could NRFP could be overridden.

Faulks’s litmus test

Did this make the guidance incompatible with ECHR Art 3 (right not to be subject to torture or to inhuman or degrading treatment)? Yes said the court. The Home Department instruction was unlawful. The court made a declaration accordingly and a mandatory order that the Secretary of State should not impose or any NRPF condition in respect of the applicant and J. I have a horrible feeling that our present Home Secretary will promote legislation to change this. Would Edward Faulks be whipped in to support her? Can he be asked? This should be a litmus test: if he would obey such a whip he should not be chairing this ‘independent’ panel.

I will tell the inquiry that they must bear in mind that in United Kingdom we do not have a true separation of powers, whatever Montesquieu may have thought. The executive – Prime Minister and his cabinet – are part of the legislature. The judiciary are independent – for now… They can supervise the executive and be a check on what they do in constitutional and rights law terms; but in United Kingdom law they are subsidiary to Parliament; and judges frequently acknowledge that in their judgments and their disposal of cases (see eg the latter part of my ICLR book review of ‘Enemies of the people’ ).

That is an argument I must address to Lord Faulks and his group. Faulks and his Tory buddies must understand this. A belief in rights, like a belief in God, does not mean you are a leftie.

David Burrows

11 October 2020

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