Keeping the government within the law

Chris Grayling, secretary of state for justice (picture Work and Pensions Office)

Chris Grayling, secretary of state for justice (picture Work and Pensions Office)

A previous blog post has noted the importance of the government not only making the law but adhering to the law itself.  In our conception of the rule of law, it is essential that this applies to the most powerful institutions in the land as well as to the weakest.

An important tool in limiting the actions of government is judicial review.  Citizens have the right to use the courts to force the government to act only within its lawful powers.  This is something that we have long suspected annoys governments, preventing them from acting capriciously or excessively, but annoying governments is normally quite a good thing to do.

Our suspicions of government have been borne out by recent proposals by secretary of state for justice Chris Grayling, which would reduce the ability of individuals and organisations to seek judicial review of government actions.  And not merely the proposals: the reasons advanced are even worse.

It is wrong to imagine that the only judicial reviews that are worth instituting are the ones that are upheld by the court: 31 out of 8,734 immigration judicial review applications made in 2011, for example.  In many cases, when the government agency realises that it would lose in court, it concedes before allowing things to get that far.

The official statistics quoted by Chris Grayling do not capture this.  Does he know this, or does he not?  It is hard to decide which of these reflects more badly on him.

Remember that one of the moves by Egyptian president Morsi that undermined confidence in his elected government was his attempt to exempt himself from judicial review.  The idea that the president should be above the law was not what the people in the revolution had thought they were campaigning for.

That is not to say that Chris Grayling should expect to be deposed by the Egyptian army, but attempts by politicians to evade scrutiny in the courts should be viewed with the deepest suspicion.

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Legal blogger David Allen Green writes in the FT to explain “Why judicial review matters, and why Grayling’s attack on it is wrong-headed”.

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