The law is not a punch-bag for the government - another flagrant attack on democracy

Gita Parihar

17 September 2013

It is round two of the government's boxing match against judicial review- the means for taking public authorities to court and to stop them breaking the law. The government now wants to restrict the ability of campaign groups to take them to court in another flagrant attack on democracy, as I explain here.  

In a 60 page consultation on the "impact of judicial review on economic recovery and growth"; the "inappropriate use of judicial review as a campaign tool" and "the use of the delays and costs associated with judicial review to hinder actions the executive wishes to take", it has presented another set of worryingly restrictive proposals, adding to those introduced in July.

To complete the picture, Justice Minister Chris Grayling penned an article in the Daily Mail entitled "The judicial review system is not a promotional tool for countless Left-wing campaigners".

Friends of the Earth is not party-political. We would never endorse any party or candidate. Our focus is making sure we have a thriving planet for everyone. Sometimes the government of the day or a political party or politician has policies that take us in the right direction. Sometimes they don't. When we think they are wrong we say so. When we think they are right we also say so. Our public comments help inform public debate. That's how democracy works (at least at present - the current Government is trying to clamp down on this too).

Like everyone else, the government and other public authorities have to obey the law. If their proposals are both bad for the environment and unlawful, we and other concerned groups or individuals have the right to challenge them in court, on a narrow range of points. If the government wants to avoid this, it doesn't need to issue consultations on changing judicial review, it just needs to behave lawfully. In the courts, it is up to judges to decide who is right. That's how a justice system in a democracy works. Our right to bring environmental cases in the public interest is also protected by international law through the Aarhus Convention.

Friends of the Earth doesn't bring legal cases lightly; we face costs risks of thousands of pounds if we lose and we carefully consider what could be achieved from any litigation. Our last big legal challenge halted a proposal that would have decimated the solar industry and was unlawful because the government wanted it to apply to a period before it had even been introduced. Did the case "hinder the executive"? Absolutely. Did we bring it because we think renewable energy is the best way forward? Spot on. Did our campaigning motive make a blind bit of difference in legal terms? Nope. Should it have done? Not in the least.

The issue before the courts in the solar case was whether the government had behaved lawfully, and the judges were clear: it hadn't. If we and others hadn't stepped in, the government would have had carte blanche to implement a highly damaging retrospective policy that it might well have tried to use in other areas also. Not only did we help the solar industry, we prevented an abuse of power by the state. For the sake of democracy, if nothing else, the rights of individuals and campaign groups to bring judicial reviews must be protected.

The latest consultation on judicial review is available here. It closes on1 November 2013. If, like us, you're worried by the government's attack on the legitimate use of judicial review, we urge you to express your concern about this consultation to the government and your MP.