Why can’t the government get things done?
Through rules, regulations and judicial review, British government has seriously emasculated itself.
The machinery of British government is sclerotic: rigid, unresponsive and unable to adapt. It has the agility and dynamism of a beached whale. The country needs infrastructure and economic savings and a culture that sets the individual free. The government occasionally promises all three but fails to deliver. A year ago, the prime minister, David Cameron, addressed the problem in a speech to the CBI. He drew attention to how we all ‘know the story’: the minister announces a plan which is followed by three months of consultation, various impact assessments and ‘probably some judicial reviews to clog things up further’. So that ‘by the time the machinery of government has finally wheezed into action, the moment’s probably passed’.
Cameron rightly noted how Britain did not become one of the most powerful and prosperous nations on earth with consultations, impact assessments and audits. He declared himself determined to change this, and central to his plan was a determination to cut back on judicial reviews and government consultations while simplifying legislation.
Progress so far? Two mealy-mouthed consultations on judicial review and little effective action. The first consultation, launched in December 2012, will result in three tepid reforms: reducing time limits for bringing some planning judicial reviews, giving judges a modest power to halt claims that are totally without merit, and introducing a new fee that few will ever have to pay. The second consultation, which closed last week, proposes several reforms, including: making it harder for some individuals and organisations to bring claims, and giving the courts greater powers to disregard procedural flaws that the court considers would probably have made no difference to the impugned decision.
In November 2012, Cameron desired ‘urgently’ to get a grip on judicial review, which he called ‘a massive growth industry in Britain today’ (he might have added that it was one of Britain’s few growth industries). Twelve months later, it is apparent, from three judicial reviews that were in the courts last week, that the government cannot shut hospitals, introduce workfare schemes, or build infrastructure without going through a legal mangle, which sometimes results in its plans being quashed and returned to the drawing board.
And for good measure, other judicial reviews in recent months show that the government can neither, without judicial approval, introduce a bedroom tax, cap benefits, restrict benefits to EU immigrants, nor decide where a 500-year-old corpse dug up in a Leicester car park should be reburied. If Brunel had had to contend with consultations, impact assessments and judicial reviews, the Great Western Railway would never have left the drawing board.
The government needs to tackle the judicial-review issue. But it has misdiagnosed the problem. The justice secretary, Chris Grayling, sees the problem as being with those who bring the claims. His recent Daily Mail article described judicial review as a promotional tool for countless left-wing campaigners. However, judicial review is concerned with the process of decision-making, and if ‘countless left-wing campaigners’ are able to exploit the process then maybe Grayling should streamline the government’s decision-making process.
If the government shone a light on itself, it would realise that it emasculates its own machinery of government with myriad countervailing duties, regulations, restrictions, consultations and impact assessments. Last week, it lost the workfare case in court because it passed legislation requiring it to provide details of a workfare scheme which it failed to provide. In the same week, it lost the Lewisham Hospital case because it passed legislation that didn’t give the decision takers, who needed to make significant savings, adequate powers to find those savings. Many judicial reviews are brought on the grounds that decision takers have failed to comply with countervailing duties such as non-discrimination duties that arise under the Equality Act 2010. The government gets judicially reviewed on countless occasions because it engages in consultations and impact assessments that are then used by aggrieved consultees to fault the decision-making process.
As Lord Neuberger, president of the Supreme Court, observed: ‘A lot of legislation is far too complicated. The more complex it is, the more room there is for the people carrying it out – the executive – to make mistakes that then lead to judicial review.’
Complicated legislation is for politicians who seek to micromanage. Equality Act duties are for legislators who see decision takers as inept and prejudiced. Consultation on policy is for an executive who lacks the values or beliefs to drive a policy forward. Impact assessments are for administrators who, for want of a political vision, prefer to stand behind accountants and lawyers.
To tackle the judicial-review problem we need to have less legislation, less complicated legislation, fewer Equality Act duties, fewer consultations, and less reliance on accountants and lawyers. In short: less regulation and red tape and more autonomy and freedom for decision takers.
It is not just the government that has misdiagnosed the judicial-review problem – so too have its many critics, including most of the legal profession, who are unable to grasp the reality of modern-day judicial review. At a theoretical level, judicial review is an important constitutional safeguard. It empowers the judiciary to ensure that ministers and other public servants do not exceed the ambit of their powers. Judicial review needs to be retained for this purpose. But at a time when decision takers are beset with rules and regulations that emasculate their ability to act, judicial review serves to ensure their emasculation.
In last week’s workfare case, the Supreme Court cited with approval a case decided in 1947, in which a court had stated that a citizen should not be ‘in complete ignorance of what rights over him and his property have been secretly conferred by the minister’ as otherwise ‘for practical purposes, the rule of law… breaks down because the aggrieved subject’s legal remedy is gravely impaired’. But the Supreme Court’s reliance on this principle to quash the workfare regulations highlights the modern-day problem.
In the 1947 case, a property owner challenged the government that had requisitioned his house for others to occupy in the aftermath of the war. In the workfare case, two claimants of jobseeker’s allowance sought to be able to receive benefits without joining workfare schemes. In 1947, a person’s property was at stake; in 2013 the state’s property was at stake.
Moreover, the principle about the need for the property owner to know his rights arose because the minister’s draconian powers had not even been set out in a published document. In 2013, the claimants claimed to need more information about their workfare schemes, but the second claimant had been told orally who his employment was with, what it involved, when it started, how many hours a week it was, its duration and the consequences of not participating. Hardly the ‘complete ignorance’ that so troubled the court in 1947.
The case in 1947 highlighted the constitutional necessity for judicial review to prevent an abuse of ministerial power. The same cannot be said of the workfare cases of 2013, where the court faulted the government for having obliged the minister to create a level of bureaucracy that he then failed to create. The Supreme Court’s decision was not an exercise, in any meaningful sense, in preventing an abuse of ministerial power. It was an exercise in faulting the minister for not jumping through the onerous hoops that parliament itself required him to jump through. A minister requisitioning a house under an unpublished scheme is one thing; a minister stopping jobseeker’s allowance under an inadequately particularised scheme is quite another. The earlier case was concerned with liberty and fairness; the recent case was concerned with bureaucracy and red tape.
The same emasculating effect of judicial review can be seen in the other two cases that the courts dealt with last week. In one, the Court of Appeal dismissed health secretary Jeremy Hunt’s appeal against the quashing of his decision to close Lewisham Hospital’s accident and emergency department. But it did so because the health secretary had clearly not understood the elaborate legislation that had been passed by the coalition in 2010. The High Court described the arrangements as needing ‘detailed consultation with many interested parties’ and as ‘lengthy and very time-consuming’. It was a bureaucratic process that got the better of the health secretary. No doubt Hunt will employ even more lawyers and other officials in future to ensure that his next cost-cutting decision is not quashed. Cue brief to lawyers: ‘make it JR-proof.’
The other judicial review last week was in the Supreme Court, which heard appeals brought by various bodies against plans for the high-speed rail initiative, High Speed Two (‘HS2’). In the Court of Appeal, the protesters had claimed the decision was unlawful (1) for want of a ‘strategic environmental assessment’, (2) for breaching European Union environmental planning formalities, and (3) for failing to consult or re-consult on alternatives to HS2. The Court of Appeal heard arguments over four days from eight barristers before explaining over 61 pages why it was dismissing them all. Whatever decision the Supreme Court eventually comes to, it is clear that this is no way to plan a railway. It might be a high-speed railway, but it comes with a slow-speed decision-making process.
Twelve months after Cameron promised to cut back on judicial reviews, reduce government consultations and simplify domestic legislation, his government has produced two consultations on judicial review and got some lawyers salivating at the prospect of judicially reviewing Chris Grayling’s modest proposals. But then, we all ‘know the story’: the minister announces a plan which is followed by a consultation or two, various impact assessments and ‘probably some judicial reviews to clog things up further’. The beached whale is going nowhere soon.
Jon Holbrook is a barrister in London. Follow him @JonHolb.