Sunak: “Lawfare industry”
Conservative leadership candidate Rishi Sunak yesterday pledged to crack down on “lawfare” and “judicial recidivism” with a focus on standing to bring judicial reviews.
He said the work of campaigning groups like the Good Law Project (GLP) was “politicising our courts, wasting time and taxpayers’ money, and slowing down government delivery”.
The GLP hit back, accusing the government of trying “to bully judges who constrain its law-breaking”.
In a statement, the former Chancellor said he would make clear that “vexatious claimants should not be wasting court time and will bring forward legislation as the ultimate backstop if this problem persists”.
This would take the form of a draft statutory instrument to amend the Civil Procedure Rules, “which [Mr Sunak] would activate in the event of judicial recidivism”.
The statement detailed concerns about the breadth of standing to bring judicial review claims. It cited the recent Independent Review of Administrative Law, although this recommended keeping the legislation on standing as is.
However, the review cautioned that judicial review of government policy had the potential to become “politics by another means”.
It explained: “Disapproval of a policy does not entitle a body to cite their judgment of public interest as providing sufficient interest to give them standing to challenge the policy. This is not an easy distinction to draw but the courts should, in appropriate cases, be prepared to do so.”
The review encouraged the courts to address expressly the issue of standing, even if the parties did not raise it.
“We do, however, hope that the courts will be astute to distinguish between ‘public spirited’ groups that enable challenges to the legality of an act or decision to take place and those applications which seek to involve the courts in a general policy review of decisions that an elected government is entitled to make.”
Mr Sunak said: “I have the greatest respect for our judiciary and the rule of law in this country, which is why I want to call time on politically motivated cases being brought before our courts.
“Like millions, in 2016 I voted for our Parliament to take back control. But it’s increasingly clear an entire lawfare industry is seeking to stand in the way of Parliament and the government delivering change.
“Repeated vexatious judicial reviews by political campaigners are clogging up the courts, costing us a fortune and acting as a drag on the government delivering for the public.”
Former Solicitor General Lucy Frazer QC MP supported the pledge. She said: “The judicial review process is being abused by campaigners who disagree with policy set by a democratically elected government.
“We need to act on this to stop our stretched courts being overwhelmed by political claims. Rishi Sunak’s government will act to get a grip of the increasing burden politically activist lawyers are placing on the judiciary.”
In response, the Good Law Project was particularly critical of the threat to judges, noting that recidivism meant the tendency of convicted criminals to continue to offend.
“The attack is the latest, and most targeted, attempt by the government to bully judges who constrain its law-breaking,” it said.
“Judicial review – success rates for which have already fallen under this pressure to the lowest on record – is the only means by which the government can be forced to comply with the law made by Parliament.”
The project noted that it achieved “a high degree of success” in two of the four cases specifically mentioned by Mr Sunak. They included the High Court decision that the ‘VIP lane’ for suppliers of personal protective equipment during Covid was flawed and illegal.
Jolyon Maugham QC, director of the project, said: “Good Law Project’s litigation is uncovering billions of your money wasted by this government’s cronyism and sleaze.
“It wants you kept in the dark. But we think it should obey the same rules as everyone else. Not change them so it doesn’t have to. None of us is above the law.”
Mr Sunak’s campaign cited the words of the Lord Chief Justice, Lord Burnett, in a case earlier this year involving the Good Law Project: “The question of standing for complete strangers to the procurement process with no commercial interest both under the regulations and on public law grounds is a question ripe for review when it next arises.”
Further, it quoted the High Court in a separate claim brought by the project as saying: “It cannot be supposed that the [Good Law Project] now has carte blanche to bring any claim for judicial review no matter what the issues and no matter what the circumstances.”
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