How the Left “Weaponized” the Justice System Under Conservative Watch

To put these numbers into context, in the early 1980s there were around 550 cases per year, including immigration cases. Today, there are almost as many non-immigration civil clearance applications per quarter, lawyers Sir Jonathan Jones (formerly the government's most senior legal adviser) and Alexander Fawke wrote in a December article 2023 for the law firm Linklaters.

The reality is that this government has, in many ways, ushered in a major expansion of judicial review, particularly in new and high-profile areas, Jones and Fawke said. He did this both as a government and as a litigator himself, a prominent (though perhaps unusual) example being his defiance of Covid investigations' demands over Johnson's WhatsApp messages.

They attribute this expansion to various factors, including Brexit and the shift of decisions from Brussels to Whitehall; the government's appetite for legal risk; and a lack of experience at its senior levels, given the high turnover of prime ministers and secretaries of state.

They also point to longer-term reasons, including that governments need to regulate in new areas such as technology, which means more opportunities for challenge.

David McNeill, director of public affairs at the Law Society, suggests that spending cuts could also be behind the increase, because when public services are withdrawn, limited or rationed, the possibility [the authority] will conflict with the increases of an individual or interest group.

Social media has opened up new avenues for attracting funds for a cause, he points out. Meanwhile, the radical reforms promised by Boris Johnson have not materialized.

In a bid to tackle the apparent proliferation of judicial reviews, the government commissioned an independent review in 2020, led by Lord Faulks KC. However, the report concluded that the system was generally working as it should.

Of course, not all judicial review is aimed at central government (as the recent Michaela Community School and Katharine Birbalsingh case shows). This process, which dates back to the 16th century, aims to ensure that all public bodies with statutory powers make decisions fairly and rationally. This includes local authorities and quangos. Reviews are designed as a form of protection for individuals and organizations; legal recourse if it is believed that a public body is taking action without following the correct procedure.

But Tory MPs, from Johnson to Sunak to junior backbenchers, have warned that the mechanism is increasingly being misused by Tory opponents to thwart policy decisions.

Lee Anderson, the former vice-president of the Conservative Party, who has since defected to the Reform Party, insisted last year that the government had implemented measures to tackle illegal immigration, but that everything was against us, including left-wing lawyers, while ministers warned of cases where the courts would be in trouble. militarized.

John Hayes, former transport minister and chair of the Common Sense Group of Conservative MPs, says: The aim of the courts is not to second-guess legislative decisions.

Successive Prime Ministers have recognized the scale of the problem, and it is a particularly serious problem because very well-funded campaign groups can seek judicial review because cost is not a barrier to them.

It is true that judicial reviews are not cheap. The plaintiff must budget for attorney fees, court costs and, if they lose, they will often be responsible for their opponent's legal costs. It is neither fair nor equitable to use an alternative means when a [political] The decision goes in a direction you don't like, to ensure that those who lost the argument prevail, Hayes says.

Although the government has taken steps to try to suppress this phenomenon, it believes that other measures could be taken to put an end to this phenomenon. [judicial reviews] be used to game the political process.

Lawyers describe this as a mischaracterization of the real effect of judicial reviews. McNeill says: The result of most [successful] judicial reviews mean that the government or public body must redo its duties and do them correctly. It is not that they are prevented from [carrying out] a legitimate political objective, but they must do so within the rules and in a reasonable manner.