Haldane Society of Socialist Lawyers submission to the Independent Review of Administrative Law

Introduction

Judicial Review (JR) seeks to provide an independent mechanism within the jurisdiction of the judiciary, for the review and remedy of flawed administrative and executive decisions. The aim of JR quite simply is to redress power imbalances between those subject to the controls and discretion of these institutions’ decision makers, and those endowed with the tools and protections of state-sanctioned power.

JR serves as a vital independent check-and-balance for the challenge of government, public bodies and corporations with significant control over socially vital resources in that jurisdiction, within the bounds of Wednesbury reasonableness. The Haldane Society of Socialist Lawyers, founded in 1930, provides a well-respected and knowledgeable forum for the discussion and analysis of law and the legal system, both nationally and internationally, from a socialist perspective. We are independent of any political party and our membership comprises lawyers, academics, students and legal workers as well as trade union and labour movement affiliates. Our President is Michael Mansfield QC. Our Vice-Presidents are Geoffrey Bindman QC, Louise Christian, Liz Davies, Tess Gill, Tony Gifford QC, John Hendy QC, Helena Kennedy QC, Imran Khan QC, Catrin Lewis, Gareth Pearce, Estella Schmidt, Jeremy Smith, Frances Webber, Richard Harvey and David Watkinson.

Our members and vice-presidents include noteworthy experts on areas including the rule of law, access to justice, administrative law, human rights, extradition law, disability rights, amongst other areas. The contributions in this submission therefore draw upon significant professional expertise and offer a public-interested perspective into the proposed consultation.

Our responses to this consultation are informed by a context where successive governments have misused neoliberal narratives of cost, streamlining and efficiency to effectively curtail and erode rights within the judicial system, particularly within the past decade. These curtailments and reductions have resulted in an increase in the burden on those who are both lacking in power and in most need of judicial remedy.

The broader political context is also noteworthy in the stark contrasts of power between those with control over executive and administrative mechanisms as well as presence in the public discourse. This discourse is of course influenced by a lack of media plurality, lobbying from those with deep pockets, commercial pressures that limit other modalities of surfacing injustice and powerful politicians’ public positions that seek to curtail the scope and independence of the judiciary and express a marked distaste for the work of so-called “activist lawyers” and critical challenge. This is coupled with the use of procedural tools to limit the ability of the judiciary to opine on issues of relevance, as well as limiting the remedies available.

Other alternatives to JR including administrative reviews continue to be limited by obvious factors, such as power dynamics within the executive and administrative arms, but also underlying factors such as group-think within the institutions themselves and the need for trustworthy, independent and unbiased review of decisions made by those with institutional access to power and resources.

The Haldane Society of Socialist Lawyers have intervened on behalf of the public interest throughout its history. We were particularly prescient in our warnings regarding the impact of legal aid cuts in 2011. It is a shame that the findings of the Commission on legal aid were not considered; many of the problems within the legal system, and within British society, including the abuse of public power, can be traced to the short-sighted austerity measures cutting legal aid funds and reducing its scope. We set out our specific concerns regarding the potential problems with relevant constitutional blindspots or, indeed, the conscious ideological agenda of Tory legislators below.

To continue reading the submissions, including Haldane’s answers to the Review’s specific questions, click here.