Dismantling racial justice

November 22, 2012 — Comment

Written by Frances Webber

The coalition’s proposals to restrict judicial review and to abolish measures which safeguard race equality amount to a further assault on migrants, asylum seekers and BME communities, in the guise of promoting economic growth.

Prime minister David Cameron used the unlikely setting of a speech to the Confederation of British Industry (CBI) conference on 19 November to outline his government’s plans to curtail judicial review. Describing the current economic situation as akin to war, he claimed that judicial reviews clog up the courts and hold up major infrastructure projects. He also promised to sweep away equality impact assessments, and curb consultations and other restrictions on government’s ability to act quickly to ‘get Britain ahead in the global race’.

In a coordinated statement, justice minister Chris Grayling cited concerns about ‘the burdens that ill-conceived cases are placing on stretched public services as well as the unnecessary costs and lengthy delays which are stifling innovation and economic growth’, to announce the government’s plans to cut down the time for bringing a judicial review (currently three months from the decision to be challenged), put up fees and curtail appeals.

Lawyers were left scratching their heads at the bizarreness of the claims. Judicial reviews of planning decisions or other types of business regulation are a tiny minority of applications; it is decision-making in immigration and asylum cases which accounts for two-thirds of all judicial reviews – and public law areas in general, including housing and prison law, account for nearly 95 percent of all cases.[1] It is hard to see how judicial reviews in these areas stifle economic growth. Yet the proposals are designed to affect all judicial reviews, not just the few regulating business activity. Whether or not immigration and asylum-related applications are the target of the proposals, it is in these areas that the effects of hiking fees and cutting down access will bite hardest.

Misleading claims

Judicial review focuses on the fairness of executive decision-making rather than the content. The ‘classical’ grounds for judges to rule decisions unlawful are failure to consider relevant factors, consideration of irrelevant ones, fettering discretion by a too-rigid policy admitting of no exceptions, going beyond the powers given by the law, gross unreasonableness and (since the Human Rights Act) discrimination and /or lack of proportionality. The remedy of judicial review grew out of older legal remedies, known as ‘prerogative’ remedies of mandamus and certiorari, and as leading barrister Sir Jeffrey Jowell has said, it is a ‘tightly controlled, quick and relatively cheap procedure’[2] for ensuring that government and its officials act lawfully and giving ordinary people redress against arbitrariness and illegality. It has become an extremely effective way of holding government to account.

Both Cameron and Grayling pointed to the exponential growth of judicial review since the 1970s – but failed to put it in context of the massive growth of legislation, rules, regulations, policy and administrative bureaucracy in that same period – nowhere more than in the field of immigration and asylum, where immigration rules which in the past might have been changed once a decade are now often amended monthly.  Many of the changes are rushed through in response to electoral concerns, like the recent attempt to define by rules when migrants can enjoy family life with spouses, partners, children and other relatives – and already gaps, ambiguities and other defects are becoming apparent, which judges will have to put right.

Another claim voiced by the politicians dwells on the very small proportion of judicial reviews which are won by applicants. This, too, is misleading – it fails to record the high proportion of judicial reviews in the field of immigration and asylum which are settled in the applicant’s favour before the case comes to court, with the UKBA agreeing to retake the contested decision if the applicant withdraws the application. Other judicial reviews in the field are brought to deal with an emergency – a threatened removal, for instance – and are discontinued once the removal is successfully averted. The fact that outcomes, such as these, are not properly recorded skews the statistics and underestimates the degree of success applicants have.

But justice minister Chris Grayling should know better than to say that many judicial reviews are brought when applicants know they have no prospects of success. It would certainly be impossible for judicial review to be brought using public funding in this situation; a case cannot go forward unless its prospects of success are good. And the filtering mechanism of requiring permission to proceed is designed to weed out unmeritorious applications.

Why curtail judicial review?

It was through the medium of judicial review that many Tamils, recently threatened with removal to Sri Lanka, were able to demonstrate to judges through new evidence post-dating their asylum appeals that the risk of torture on return was real. And it was through judicial review that severely mentally ill immigration detainees were able to demonstrate to the High Court that their continued detention in defiance of psychiatric opinion amounted to inhuman treatment. Judicial review is preferred to the ancient remedy of habeas corpus for challenging immigration detention since such detention generally complies with the letter of the law (which allows for indefinite detention pending deportation), but might be contrary to policy or to detainees’ basic rights.

The remedy of judicial review has been used successfully to challenge regulations depriving asylum seekers of all support, laws which required non-Anglican migrants to obtain Home Office permission to marry, rules which prevented family reunion for migrant spouses or partners under 21, and is routinely used to challenge removal of asylum seekers to unsafe countries, whether of origin or transit. It was used to challenge the blatant race discrimination which saw Roma passengers being refused boarding at Prague airport. It has recently been used repeatedly to stop executive law-making which bypasses parliamentary scrutiny, such as the interim cap on the admission of skilled workers and the imposition of onerous financial requirements on students through policy rather than rules.

The coalition’s proposals are in the tradition of authoritarian governments seeking to get judges off their backs, particularly in dealing with unpopular minorities. As the UK Human Rights blog noted, only a week before the CBI speech, Cameron was complaining of having ‘moved heaven and earth to try and comply with every single dot and comma of every single convention to get [Abu Qatada] out of this country’.[3] Making judicial review more restricted and more expensive will not affect those like Qatada who are entitled to exhaust statutory appeals before deportation – but will make executive action such as detention and removal of vulnerable people more difficult to challenge.

The importance of resistance

As Lord Dyson, the lead judge in the Court of Appeal, has said, ‘there is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review.’[4] The last time the government sought drastically to curtail migrants’ access to the courts, in 2003, a huge coalition of activist and support groups, senior lawyers and judges, including members of the House of Lords, defeated the proposals. This time, the context for the proposals is the legal aid cuts which have already devastated the immigration and asylum sector, drastically reducing access to specialist legal advice. This is set to get worse after April 2013, when there will be no legal aid for advice or representation for any non-asylum immigration appeal apart from detention. This means no legal aid to fight deportation, or to appeal refusal of a visa, or exclusion from the country, or removal of residence or citizenship rights. Judicial review was largely exempted from these legal aid cuts.

The proposals to curtail time limits for judicial review in particular could be seen as a pre-emptive response to the withdrawal of legal aid for appeals. Unrepresented appellants lose their appeals far more frequently than those with legal representation – not surprisingly, as legal help is needed to prepare and present an appeal properly, with all the necessary evidence. It may be that the curbs on judicial review are designed as an obstacle to those facing removal following a failed appeal – as those who have had to face an appeal without solicitors are less likely to know the time limits for judicial review, or where to find a decent solicitor, or even to know that the remedy of judicial review exists. By the time applicants have found out about the remedy and got themselves a solicitor, it will be too late.

Slashing ‘red tape’ – or retreating from equality?

Cameron’s CBI speech attempted to evoke the ‘buccaneering spirit’ of entrepreneurial businessmen too busy innovating, creating and selling to worry about red tape. ‘We are calling time on Equality Impact Assessments … consultations, impact assessments, audits, reviews … complying with EU procurement rules, assessing sector feedback – this is not how we became one of the most powerful, prosperous nations on earth.’

The speech might have been more convincing if the government had been more receptive to the CBI’s concerns that the cap on economic immigration introduced in April 2011 would stifle economic growth.  But the proposals to do away with equality impact assessments and to curtail consultation are clearly designed to appeal to both the neoliberal and the neo-nationalist wings of the Tory party. Equality impact assessments have been important in ensuring that legislation and executive decisions do not have a discriminatory effect – and judicial review has also been essential in ensuring that such assessments are done. A judicial review drew attention to the failure to assess the potential for discrimination in the decision to concentrate foreign national prisoners in a small number of prisons, without consideration of remoteness from families and from legal advice. Another revealed the failure to assess the impact of a change in mental health policy for immigration detainees; a third (the only one which could conceivably affect economic growth) showed the failure to assess the disproportionate effect that a shopping development would have on BME traders because of the projected closure of a Tottenham market. If equality impact assessments were abolished, the discrimination revealed in these cases would be free to flourish. Similar arguments apply to EU procurement rules which require contractors not to discriminate in awarding contracts – another of the coalition’s targets.

Abolition of these safeguards is proposed at a time when the statutory body tasked with monitoring and countering such discrimination is at its lowest ebb. In May, the Equality and Human Rights Commission had its budget and workforce halved, and in October its two remaining non-white commissioners were told their appointments would not be renewed.

In 2011, Cameron, with other centre-right leaders across Europe, launched an attack on multiculturalism, which effectively sought to blame immigration and Muslims for the economic crisis.[5] The proposals announced this week take the theme further, seeking to curtail measures to ensure racial equality, and migrants’ access to justice, as if they were to blame for the parlous state of the UK economy.

Related links

Read an IRR News story: ‘Understanding the Europe-wide assault on multiculturalism’

[1] Sam Chadderton, ‘Government's planned judicial review revamp “misses the point”’, The Lawyer, (19 November 2012). [2] Jeffrey Jowell, ‘Diminishing judicial review will reverse 50 years of legal progress’, Guardian, (19 November 2012). [3] Adam Wagner, 'A war on judicial review?', UK Human Rights blog, (19 November 2012). [4] Cart v Upper Tribunal [2011] UKSC 28, 21 June 2011. [5] See Liz Fekete, ‘Understanding the Europe-wide assault on multiculturalism’, IRR News, (21 April 2011).

The Institute of Race Relations is precluded from expressing a corporate view: any opinions expressed are therefore those of the authors.

Comments

November 23, 2012
Charlotte Kinealy:

Are any measures being taken to fight this?

November 24, 2012
Marion Walter:

A brilliant analysis – Is there a movement to resist this?

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