Direct Interest

Giles Fraser writes:

It may be terribly naive of me, but I would have thought it was a minimum job requirement for the lord chancellor and secretary of state for justice to want to uphold the rule of law. Even more so, to make sure that the government of which he is a part doesn't itself act unlawfully.

But the small print of Chris Grayling's new proposals – a reform to the standing rules on who can bring a claim for judicial review – though technical and therefore, to many of us, rather dull, will have precisely the effect of making it so much more difficult for the public to test the legality of what the government gets up to.

And this is a really big deal – and not just for the "countless leftwing campaign groups" that he has admitted to be his target.

Judicial review is the process by which the public is able to test in the courts whether or not the government has acted lawfully – that is, simply abided by the rules of parliament's own making or those of common law. Judicial reviews are thus a process by which we are able to hold the government accountable to its own legislation.

Grayling obviously hates having his legal homework checked by the courts. It's an irritation to him to be told that the government has not followed its own rules. So now he is proposing that only someone with a "direct interest" in the matter will be able to bring a judicial review.

In other words, only those personally affected by the legislation can bring a case, thus excluding Grayling's hated lefty campaigning organisations from using this route to challenge the government.

But the sort of groups that will be shut out of court by his new proposals are not just "lefty" ones – Greenpeace, Child Poverty Action Group, Joint Council for the Welfare of Immigrants, that sort of thing. 

They will equally affect groups not known for their revolutionary intent – the National Farmers' Union, pro-lifers challenging decisions on cloning, Eurosceptics challenging new EU treaties, the Countryside Alliance etc.

Grayling argues that it is the job of government to decide where the public interest lies. That's just flabby rhetoric, for it assumes a basic schoolboy error that the courts are going round quashing government policies because they don't agree with them.

That's rubbish.

The courts don't interfere because they disagree, just when the government has acted unlawfully – to give a small example, where the law says that the government must consult when doing something and it hasn't bothered to do so.

If Grayling sees this sort of thing as unnecessary red tape, he ought to have the balls to stand before the House of Commons and change the law, explaining why consultation, for example, is unnecessary. 

In June 2009, the peace campaigner Maya Evans challenged the government, though judicial review, over its policy of passing captured Afghan detainees from the British military to the Afghan authorities.

There was, to quote the high court judges who handed her a "partial victory" in 2010, "a real risk that detainees transferred to NDS Kabul [the National Directorate of Security's detention facility in Kabul] will be subject to torture". Transfers to NDS Kabul were therefore unlawful, and had to be stopped (those to other NDS facilities could continue, with added safeguards).

If a government wants to make torture legal, it should argue for that in parliament. Instead, Grayling is trying to stop people like Maya Evans bringing cases where they are not personally affected by the situation – as if some poor blighter in prison in Kabul is in any sort of position to take out a judicial review.

No, the injustice secretary is being sneaky and thereby fundamentally undermining the rule of law. These proposals are currently out for consultation.

We should be a lot more worried about them than we are.