The government attack on Judicial Review and the Human Rights Act: why does it matter?

The newly appointed justice secretary Dominic Raab has threatened to curb the power of the courts – including the European Court of Human Rights – to execute checks on his government’s actions. A recent Guardian article points out the dangers in such a move: https://www.theguardian.com/politics/2021/oct/17/labour-urges-dominic-raab-to-tackle-justice-system-chaos.

What is Judicial Review?

The legal process of ‘judicial review’ is a primary way to prevent the government acting beyond its powers. The process allows the court to examine a decision made by a government body, and decide whether it was illegal, irrational, procedurally improper, or when it has failed to act in accordance with its promises, statements or actions. The role of the court is not to decide on the merits of the decision or to remake the decision, but rather to establish whether the decision was so flawed it fell below the standard expected of a competent government. This is especially important to ensure those in power behave rationally and fairly toward people they rule. A successful judicial review may be seen as a ‘check’ on the government’s power, ensuring flawed decisions are revoked and made competently in the future.

Judicial review is a valuable tool, and essential in a country that values holding those in power to account.

What is the Human Rights Act?

Similar remarks can be made of the Human Rights Act, which brings the European Convention on Human Rights, signed in the wake of the atrocities of the second world war, into UK law. The Convention was written to ensure the horrors witnessed during that time are never repeated again in Europe. It extends protections such as a right to life, a prohibition on torture, a prohibition on slavery and the right to a fair trial to all those governed by the nations that signed it. The UK is an original signee to the Convention. Claims can be brought under the Human Rights Act to ensure that when Convention rights are breached, the government is held to account and makes amends to the person wronged.

Why is the government threatening to curb human rights and judicial review protections?

Mr Raab has attacked both the process of judicial review and the Human Rights Act, threatening to limit the powers of both. As the above Guardian article points out, the government was furious when the Prime Minister’s decision to delay the opening of parliament, which many see as an attempt to prevent MPs scrutinising the government’s Brexit plans, was reversed by the Supreme Court as a result of a successful judicial review. Similarly, senior government officials – including former Prime Minister Theresa May – have sought to demonise human rights lawyers as being against the national interest.

It is as yet unclear how Mr Raab intends to curb the redress afforded by judicial review and the Human Rights Act, but any attempts to do so would be extremely concerning. Limitations placed on the process of judicial review could allow the government to behave how it pleases without an effective way to challenge it. Similarly, without the Human Rights Act, the avenues for justice available to those abused at the hands of the state will be severely narrowed. The government thereby seeks to remove the processes that protect us all.

Mr Raab’s comments are particularly worrying at a time when rape prosecutions stand at disgraceful lows. Judicial review and claims under the Human Rights Act are two mechanisms potentially available for women who feel the state – be it the prison system, the police or the probation service – has failed to take action after having the courage to report sexual abuse. The government seeks to remove what is often the only restitution available to abused women.

Saunders Law specializes in challenging the state to investigate reports of abuse effectively and properly and invites enquiries from those who feel let down by the investigating authorities. Call our Human Rights team on 0207 632 4300 to explore the legal remedies that may be available to you.