In a public consultation that will close on 1 November, the Coalition Government is proposing to radically curtail legal challenges to public bodies through the courts.
The proposals put forward by the government aim at removing the ability of many NGOs to bring legal action on behalf of those they campaign for. Only those with a direct link to policies or a legal decision will be able to make a challenge, rather than those with “sufficient interest” as at present. There will be severe cost implications for individuals wanting to take action; legal aid will be refused until the Court has granted permission to proceed and anyone bringing an action will be required to show that they have been lawfully resident in the country for a year.
These changes will seriously limit the ability of NGOs to challenge legislation or policy on behalf of the causes they represent and prevent the most vulnerable individuals from accessing the Courts - even where there is a potential breach of a fundamental human right.
In my organization, Just for Kids Law, which advises and represents young people in difficulty, we frequently see public bodies refusing to look after vulnerable teenagers until we begin judicial review proceedings. At this point, they often capitulate. But if the Government is successful and those teenagers could not prove their “lawful” residency, or if they couldn’t find a lawyer to take their case for free, they would be left without the support they need.
A good number could end up turning to drugs, crime or prostitution.
To understand the impact these proposals might have in England and Wales as soon as next year, you need to imagine living in a country where your life is unlawfully endangered and yet you have no access to the Courts to protect yourself or your family.
When the United Nations drew up the Universal Declaration of Human Rights in 1948, a new world was emerging from nearly half a century of bloodshed. Millions of people had died unnecessarily; citizens from across the world were united in their desire to bequeath future generations a better world. In the UK on Remembrance Day we annually give thanks to those who sacrificed their lives so we could inhabit this better world using the motto: “Lest we Forget”.
In September this year Chris Grayling, the Minister for Justice, wrote an article in the Daily Mail. He argued that judicial review was being used as a “promotional tool for countless left-wing campaigners”.
He went on to say “Often, they are better paid than the people they lobby as they articulate a Left-wing vision which is neither affordable nor deliverable” and argued that it was the “taxpayer who often has to foot the bill” of judicial reviews.
This year Just for Kids Law challenged the lawfulness of a policy that denied 17-year-olds independent adult assistance at the police station. The UN Convention on the Rights of Child, which the UK has ratified, declares that every human being under the age of 18 is a child. As a result of the campaign to get government to change this anomaly in the law and protect 17-year-olds at police stations we learned of the tragic circumstances of Joe Lawton and Edward Thornber who had taken their lives. Both were 17, both good boys destined to succeed, but a brush with the police led them both, independently, to believe that they had lost their futures. A year apart they were arrested - one for possession of one cannabis joint and the other for drink driving - and took their lives.
Both sets of parents truly believe that had they had an independent adult with them at the police station, someone who could have advised them and given them some perspective, they would be alive today. The Lawtons and the Thornbers campaigned; children’s charities lobbied; citizens (more than 50,000 of them) signed petitions. Even certain parts of the police and Inspectorate of Constabulary supported the change to protect17-year-olds at police stations. But the Home Office refused to change the code of practice to protect them, citing, as it turned out, a faulty analysis of the costs as one reason for refusing.
We took a judicial review, armed with one brave 17 year old who was prepared to stand up and say that this was not acceptable. And we won.
Lord Justice Moses in his judgment stated: “I need only record that no one outside the Home Department, be they expert or not, has joined in the Secretary of State’s opinion that ‘there are reasonable policy arguments in support of each position’ and that ‘on balance’ she should not impose the requirement that an appropriate adult attend in respect of all 17 year-olds.”
As a result of our challenge the law changed. From this week, all 17-year-olds who are at the police station will be offered the service of an adult independent of the police to guide them through an often bewildering and terrifying experience. Suicide is the second highest cause of death in males aged 15-25.
There was a cost to the tax payer taking this issue to judicial review (as the Minister of Justice lamented in his Daily Mail article). But this cost, we would argue, was created by the Home Secretary resisting changing a code of practice that was found to be unlawful.
Rightly or wrongly, our civic system is an adversarial one. We are wedded to our belief that it is the best model in the quest for truth. It is how our legal system is set up; one side against the other with an independent judiciary deciding where the truth lies. It is how our parliamentary system is set up; one side against the other with a public vote to decide the best option.
NGOs are Non- Governmental organizations; they present the other side, often challenging government. Antonin Scalia, conservative Judge of the US Supreme Court, once said: “The worst opinions in my court have been unanimous. Because there’s nobody on the other side pointing out all the flaws.”
NGOs are able to assist government, to point to flaws that may have been overlooked or not considered. NGOs are, usually, independent of government, providing the alternative voice. Often they provide a collective voice for those who otherwise may not be heard or who are unable to articulate their rights or access the courts or, in the case of children, who are owed a duty of care by the state.
It is fundamental that these often marginalised groups are given a voice. Of course legal action is not always required but when lobbying and negotiation fail or fall on deaf ears, an independent Court is the right place for disagreements to be resolved and rights enforced.
It would be a tragedy if the rights of NGOs to challenge the lawfulness of legislation and policy were lost through apathy.