The battered rule of law

This has not been a good week for the rule of law in the UK.

The Prime Minister started it off on Monday by railing against the growth of judicial review of Government actions. Apparently the fact that, in his analogy, the economy is in a fight for survival similar to that of the nation itself during World War II, justifies restricting people's right of access to the courts if they think an official decision has not been made properly.

As usually happens, a broad brush picture was painted of litigants clogging the courts with timewasting and unfounded applications which prevent the efficient business of government delivering benefit to the country. But as others with access to the figures were quick to point out, the growth in number of applications is down to the number of immigration petitions, which has little if anything to do with getting the economy moving.

And if the time limit for making an application in the English courts is already only three months - and I believe  that even then the courts take the line that if an application could reasonably have been made sooner than it has, it will be regarded as out of time - how is that going to be curbed further without the risk of shutting out cases of genuine merit?

I have seen a figure that only around 6.5% of applications in England & Wales are allowed to proceed, which does not sound as if the judges are giving free rein to protesters. If legal aid is restricted further, how many more cases will be brought without proper legal advice - and could more of them be allowed to proceed if judges think they might have a point even if not well formulated?

Then we had the depressing spectacle of the Conservatives' continued manoeuverings to try and get round the European Court of Human Rights' decision on prisoners' voting rights - even more depressingly supported by the Labour front bench, forsaking principle for populism. Who would have thought we would ever see a Lord Chancellor state that MPs could "legislate contrary to fundamental principles of human rights", with the constraints against doing so "ultimately political and not legal", as Mr Grayling did yesterday?

Like its predecessor, the Government appears determined to turn procrastination on the issue into an art form. But its hand may yet be forced if a case pending before the UK Supreme Court should rule that elections to the European Parliament (due in 2014) fall within the scope of the current case law. How would the potential compensation claims mount up in that case?

The Prime Minister's propensity to make grandstanding statements from which he then cannot back down without losing face, is most regrettable, and is more likely to involve him digging a deeper and deeper hole for himself and his Government.

There was one exception to the week's general gloom. The House of Lords passed amendments, against Government opposition, to the Justice and Security Bill that will make the use of closed material procedure (where material said to be sensitive to national security is seen only by the judge and a special advocate appointed to represent a party) less one-sided in favour of the Government. It is to be hoped that the Commons will take heed of the points made, not just in debate but previously by the House of Lords Constitution Committee, as to why the original proposals represented a serious threat to fundamental principles of open justice.