Are the Ministry of Justices Proposals to Reform Judicial Review an Attack on Our Legal Rights - Essay Example

Are the Ministry of Justices Proposals to Reform Judicial Review an Attack on Our Legal Rights? Introduction Civilised societies desire to achieve democracy because it is in through this kind of setting that equality can be achieved among the people while being governed by rules and regulations that bind all individuals and institution in similar measures. The United Kingdom is among the most advanced democracies of the world given its track record in upholding the constitution and, especially human rights. It is thus prudent to assume that such a society will always enact legislations that mean well to the people to bolster good governance while ensuring the rights of the citizens are safeguarded (Rose-Ackerman and Lindseth, 2011). Over time, the United Kingdom government has embarked, on a mission, to introduce critical proposals to the judicial review that have not resonated well with the majority. In essence, rights groups and law scholars have termed them an attempt by the executive to limit the accessibility of the constitutional privilege to the people. Undoubtedly, judicial review is the only channel through which citizens of a country can pursue to put the government or any other public institution to task for the decisions or policies that it has made that may be considered inappropriate and inconsistent with the rule of law. Crippling this channel will be equivalent to declaring the government and its agencies to be above the law since there is practically no other path that can be pursued to hold them into account for their actions (Fenwick et al., 2010). The paper is going to examine how the proposed changes in the judicial review are a risk to human rights and particularly an attack on the legal rights of the citizens of the United Kingdom. Some of the proposals by the ministry of justice to reform the judicial review are elaborated below. Proposals for the Judicial Review Reforms In a consultation paper, the Government through the Secretary of Justice outlines some of the reforms that it perceives to be important to review the justice system to make it more robust and efficient in-line with changes in the legal ramifications of the country. To begin with it suggests limiting the time frame allowable for individuals interested in seeking judicial review in particular circumstances. The consultation paper suggested the time for seeking planning cases to be reduced to six weeks while judicial reviews involving procurement cases to be limited to thirty days. Consequently, the reforms seek to minimize the scope under which renewal application should be made, for permission, to seek judicial review in the event that the same case was refused initially. The reforms also include suggestions to increase court charges as regular court fees will be adjusted to $ 313 up from the current $80. The new proposals for oral renewal of judicial review application will attract a cost of between $300 and $313. That notwithstanding, interveners who will to be enjoined in cases will have to pay their own court charges according to the proposal and also pay any other tribunal cost by other parties arising from their enjoinment in the case. Finally, the proposals seek ardently to limit the level of legal aid which individuals should receive while pursuing judicial reviews as it aims to scrutinise those providing support. In the proposal, it is mandatory for payments to be made for pre-permission work of judicial review cases. Notably the proposals to reform the judicial review are founded on the precipice of making it difficult or rather limiting individuals from seeking judicial review. In any way, it does not create any a better working environment for this particular legal process to thrive by enhancing its efficacy (Desmith et al., n.d.). Once they were made public the proposed reformed were received will negativity from different sectors all condemning the government in its efforts to gag the judicial process while limiting the level to which the government and its agencies should respond to accountability issues. The consultation paper outlines the rationale under which the government saw it prudent to initiate those reforms some are discussed as follows. Firstly, the government argued that the changes were modest as they sought to limit individuals who were out to misuse the process with exterior motives of tarnishing the judicial system. But then, that argument is rather weak and uninformed since legal procedures are meant to set the record straight of whether any action whether petty or enormous in nature by indicating the provisions for accountability in the public administration. The government by limiting access to this crucial judicial process is in other words cushioning the government and its agencies from taking responsibility. Conversely, the government institutions were created with the sole mandate of offering services to its citizens as long as a case is admissible there is nothing like misusing the process all manners of presentation to the courts are meant to either determine something or elaborate rule of law to the people (Rose-Ackerman and Lindseth, 2011). The government also argues that, in the past judicial review, cases have significantly increased thus expanding the scope of work for the justice system. Relatively, it adds that substantive amount of resources is used for that particular course hence jeopardising service delivery by that arm of government. However, the government got is wrong with this specific argument since statistics indicate that leaving the immigration cases the number of other judicial review cases has been reasonably level over the past twenty years averaging at around 2400 cases annually (Great Britain, 2012). That number is fairly manageable concerning the resources available. Ideally, justice cannot be compromised by the pretext that there are insufficient resources to cater for its course. For instance, is thousands of judicial reviews are presented all challenging the procurement process in government tenders in which billions of shillings were involved. It would not be imperative to make a blanket judgement that the cases are numerous thus straining the judicial process since they seek to recover public resources that far out-weighs the cost of running the entire system (Fenwick et al., 2010). Conversely, the consultation paper further asserts that the numerous applications are undesirable since they impact on not only the judicial process but also public administration. It is common knowledge that public policy is characterised by laxity when it comes to adhering to the rule of law. Those institutions cannot govern themselves without being checked or rather taken to responsibility of their operations. It would be imperative and economical for the nation if those systems make marginal gains by following due diligence rather than enormous profits in which due diligence is not followed and by scrutinising those profits it would be evident that significant amounts of public resources were lost in the process (Anthony, 2002). The government reiterates that judicial review procedures have an adverse effect on decision-making processes in government and its institutions. In that light, it further states that officials in federal agencies will be reluctant in formulating crucial decision with the fear of being challenged with judicial reviews. Typically, this can be regarded as a positive effect of the process of accountability and diligence will be embraced in government operation as the officials involved understand the repercussions for inappropriate policies. Further, the consultation paper goes ahead to indicate that the proposed reforms are a proportionate and balanced approach by the government that is aimed at ensuring the judicial review process and public administration all thrive in equal measures without any subduing the role of another (Rose-Ackerman and Lindseth, 2011). Effects of the Proposed Reforms The proposed changes to the judicial review have elicited both criticism and applaud in equal measure as the government is vehemently supporting them while the opposition, human rights group and a significant percentage of the citizens of the United Kingdom are against them. Indeed, this is a weighty issue that needs to be approached, with sanity, to ensure it is utilitarian and does not suppress the rights and constitutional privileges of the minority (Rose-Ackerman and Lindseth, 2011). To begin with the reforms is a clear indicator of elective dictatorship having its way into the United Kingdom. It is not any modest citizen’s wish to see the massive steps made towards democracy being overpassed by selfish legislations by the government that are solely meant to protect its actions and give it immunity from taking responsibility (Auburn et al., 2013). Public administration is a critical service that every citizen depends on daily for various purposes. If that sector is left unaccounted whereby rogue politicians and administrators get their way in everything unchallenged then a situation is coming whereby some people will be literally above law since there will be no provisions in the existing laws that checks on their actions. Similarly, when a situation like that will come in place those in government will tend to act irresponsibly and inconsistent with the rules and regulations governing their bodies since after all they are sure nothing will be done to challenge their policies or decisions (Desmith et al., n.d.). Some of the inconsistent actions that those very people commit impact on other sensitive groups that depend on the judicial review as the only sure way to get justice done. Conversely, the judicial review was empowered the moment the human rights act came into place thus strengthening the process (Elliott, 2001). A significant number of ordinary citizens who wish to make a judicial review presentation fail to do so due to financial constraints, furthermore even small businesses and enterprises on their own cannot achieve that process they depend on their trade associations to present their dissatisfaction with the courts. The government is keen to make reforms that will see only a few make it through the process and without the aid of rights group most of which are ready to fund judicial reviews against irregular decision by the government. In essence, the UK government is out to prevent justice from being accomplished by instituting unnecessary provisions that make it virtually hard for any entity to challenge its operations (Great Britain, 2012). Relatively, the justice secretary while announcing the changes through the consultation paper highlighted the fact that the changes are meant to stop opposition leaders who are utilising the judicial review process as a campaigning tool for themselves and their parties. I believe any action that is made to question irregular use of public resources or decisions that are meant to affect the general public are appropriate despite its intention (Auburn et al., 2013). If the government is indeed doing the right thing then it does not need to worry about the process; since the opposition leaders or any other party will not have substantial claims to challenge its decisions since it followed due diligence in all its operations (Hertogh and Halliday, 2004). The idea of trying to institute reforms that gag the entire process is against the fundamental rights of the citizens and particularly the legal rights. In essence, it is prudent to note that the government is the one which is in turn frustrating the general public from accessing justice by coming up with reforms that are not of the interest of the majority. As long as the right actions and decisions are made no matter the financial loss that is incurred, in the process, it will be to the benefit of the nation as justice will have prevailed. Underperformance in the public sector cannot be utilised as an excuse to escape accountability; public administration is bound to perform to the required standards while adhering to the rules and regulations that govern them (Stationery Office, 2014). The reforms make it difficult for non-governmental organisations and rights groups to intervene in cases that are of public interest. The ordinary citizens have limited knowledge as far as public law, and public administration is concerned. Thus, even if their want to challenge the decisions made by government agencies their cases may be dropped on technical ground. It is from that pretext that rights group intervene to provide the required evidence to make a solid case to challenge irregular decisions by the government (Van Der Schyff, 2010). The government is pretty sure that ordinary citizens are not a threat that is why they are not being limited but tend to cap the grounds on which other groups can be incorporated in the cases. That notwithstanding, the idea that the justice secretary will be the one to determine whether a case is or is not of public interest is ridiculous and a profound sense of injustice since they are trying to formulate the grounds under which their very own decision should be challenged (Great Britain, 2013). It is common knowledge that critical cases will be dismissed on the premise that they do not meet the public interest threshold thus barring rights groups from being enjoined. We are witnessing a situation whereby the government is in a bid to restrain the grounds under which its authority is held responsible for proposing reforms that are a threat to the democratic gains made by the country. The legal rights of citizens are on trial since their sole channel of challenging public policy is in the noose of jeopardy since in future judicial reviews will be merely a formality but practically of less importance in substance (Anthony, 2002). Outsiders are just offered consent to mediate where their intercessions will aid the considerations of the Court, the Courts can further accommodate intercession in an extremely constrained structure which won't produce critical expenses suggestions for any gathering, for instance the High Court will regularly restrain outside interveners to giving paper, instead of oral representations. As far as Liberty can tell, it is further an anticipated result for foreigners to face limitations on the issues they may address in their entries and the length of entries. The Government's proposition on intervener expenses give off an impression of being an alternate endeavour to keep the full and exhaustive prosecution of matters of extraordinary criticalness, which include the Government or an alternative open power as respondent (Fenwick et al., 2010). Raising the possibility of possibly massive budgetary obligation for outsiders will imply that the court will be less inclined to profit from the info of specialists and equity will endure, therefore. Such a move will likewise dissolve the capacity of judges to react to particular circumstances of a case and make a request for expenses which mirrors the diversions of equity with reference to the position and conduct of every one of those included in the suit. The meeting paper proposes to build the expense suggestions for an inquirer ought to a court choose not to give consent at an oral hearing. At present, it is for a judge to focus costs in these circumstances (Anthony, 2002). The combined impact of the Government's discussion recommendations will be to force unsustainable expense results which will have a chilling impact on cases which revile the activities of Government and other open powers (Great Britain, 2013). The Government has not delivered proof to backing its proposition to limit the standing test. It likewise does not create proof in backing of correcting the standards on external mediation. The transitory passage that arrangements with this in the counsel paper doesn't even propel contentions in the matter of why this may be a coveted blueprint, put something aside for perceiving that more applications to intercede in cases would likely emerge if the standing test were changed. It is obvious that the Government has been not able to create contentions and proof in this way. The part of interveners is to support the court and interveners as of now oblige consent (or especially can be welcomed by the tribunal) to intercede. For permission to be allowed they have to show that they will add something material to the legitimate contention (Anthony, 2002). The indicated method of reasoning for this change is disjointed and seems, by all accounts, to be given an essential misconstruing about the law and capacity of JR. The counsel paper contends that Government concern is in view of the guideline that Parliament and the chose Government are best set to figure out what is in general society interest. It confounds the reason for a legal survey which is not concerned with substantive strategy making yet rather the lawfulness of Government choices (Van Der Schyff, 2010). Doubtlessly the Government concurs that the illicitness is never in the general population interest? The conference paper is additionally severely hampered by a clear fixation on the assumed "political" points of particular people and NGOs, expressly looking for to reject persons who had just a political or hypothetical investment, for example, fighting gatherings. Thus, this is a hazardous perspective that sits all the more agreeably with totalitarian administrations as far and wide as possible where NGOs and collective society groups focused on meeting expectations in the general population premium are blamed for "political" movement. To deny that community groups might genuinely try to further the general population enthusiasm by considering the Government responsible for the law is to take an exasperatingly restricted perspective of fair interest. It doesn't sit effectively with our adult and liberal majority rule government (Great Britain, 2013). Access to the judicial review process is sought to be narrowed with the introduction of numerous restriction ranging from requirements for a case to stand to who should intervene the process. It is a testament that shoddy policies made by administrators in the public sector will go unchallenged paving way for grievous economic and criminal acts to be committed in the full view of the judiciary (Fenwick et al., 2010). The government is assuming that the citizens are not entitled to the oversight role of checking the practices in the public sector and thus wants to impose its will on them by denying them their legal rights. Restricting the test for standing in court to only the persons that are of direct interest to the issue is impractical. Some may argue it is a modest decision as unnecessary judicial reviews will be quashed but then the same laws that govern judicial reviews have the provision of the one pursuing the court challenge to meet the cost of the entire process in the event that the petition fails. That is enough to scare away any naysayers who are out to abuse the process or rather distract public administration from implementing its mandate (Great Britain and Francis, 2013). Ideally, the statistics available indicate that, since the inception of the process, only a small portion of the cases have been won thus upturning government decisions. Despite that the citizens still have faith in the process by launching new petitions whenever they feel being short charged by government agencies. By openly clipping the process, the government is demonstrating its selfishness in its decisions and lack of respect for the legal rights of its citizens who elected them to power (Auburn et al., 2013). In a nutshell, the rationale under which the government seeks to institute the reforms to judicial review is based on fundamental misunderstanding of the entire process are founded, on bias and prejudice, to impair the process. There is no way a sane government can limit or practically incapacitate the only channel through which the public can hold it accountable for its actions. The citizens are taxpayers for the government of UK, essentially they are the ones that fund its operation thus they have every right to question key decisions made by the government or anything that affects them (Van Der Schyff, 2010). The reasons behind the proposals are mere rhetoric as they are no substantial grounds that have been presented that necessitated the reforms. The government, in this case, is infringing the very rights that it purports to safeguard for the people. If at all it is the objective of the government to ensure accountability and rule of law prevail the changes should be dropped as they are against the public will of the majority and on that right dictatorial in nature. Anything that is imposed against the wishes of the majority is deemed domineering especially in a society founded on the spirit of democracy such actions are uncouth and unwarranted. Similarly, contrary to government allegation that the judicial process has disrupted service delivery and performance in the public sector there is no single statistical evidence in place that has associated the government being held accountable for losses or underperformance it is common knowledge that responsibility will bolster sound decisions which, on the other hand, will lead to success in those particular institutions. The people of United Kingdom reserve the right to access judicial review process in the earliest opportunity without any restrictions or limitations whatsoever. Bibliography Anthony, G., 2002. UK public law and European law: [the dynamics of legal integration]. Oxford [u.a.], Hart. Auburn, J., Moffett, J., Sharland, A., Demetriou, M., & McManus, J. R., 2013. Judicial review: principles and procedure. Oxford, United Kingdom, Oxford University Press. Desmith, S. A., Woolf, H., & Jowell, J., (n.d.). Judicial review of administrative action. London, Sweet & Maxwell. Elliott, M., 2001. The constitutional foundations of judicial review. Oxford [u.a.], Hart. Fenwick, H., Phillipson, G., & Masterman, R., 2010. Judicial reasoning under the UK Human Rights Act. Cambridge, Cambridge University Press. Great Britain, & Francis, H., 2013. Legislative scrutiny: Immigration Bill: eighth report of session 2013-14: report, together with formal minutes. London, Stationery Office Limited. Great Britain. 2012. Judicial review: proposals for reform. London, Stationery Office. Great Britain. 2013. Judicial review: proposals for further reform. London, Stationery Office. Great Britain. 2013. Reform of judicial review: the Government response. London, Stationery Office. Hertogh, M. L. M., & Halliday, S., 2004. Judicial review and bureaucratic impact: international and interdisciplinary dimensions. Cambridge, UK, Cambridge University Press. Rose-Ackerman, S., & Lindseth, P. L., 2011. Comparative Administrative Law. Cheltenham, Edward Elgar Pub. Stationery Office. 2014. Implications for access to justice of the government's proposals to reform judicial... review: House of Lords paper 174 session 2013-14. [S.l.], The Stationery Office Tso. Van Der Schyff, G., 2010. Judicial review of legislation a comparative study of the United Kingdom, the Netherlands and South Africa. Dordrecht, Netherlands, Springer. http://public.eblib.com/choice/publicfullrecord.aspx?p=603228. [Accessed on 22 Mar. 15] Read More