Public Interest Law Centre

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19May 2022

Housing associations & JR: update

19th May 2022|Case Q&A, Domestic abuse, Housing, Judicial review|

In a case brought by PILC on behalf of a domestic abuse survivor, the High Court has ruled that decisions taken by housing associations around the consideration and refusal of management transfers are subject to judicial review.  

In our latest blog, Izzy Mulholland explains the significance of the ruling both in terms of legal precedent and the practical implications for survivors.

What’s going on?

In 2021, our client T, a survivor of domestic abuse, applied for a management transfer that would allow her to move to new accommodation where she and her children would be safe from the perpetrator of the abuse.

When Network Homes refused to grant T’s request, she brought a judicial review challenge against the housing association involved, Network Homes.

What did the court decide?

The key finding in the decision handed down by the High Court in the case known as TRX v Network Homes Limited [2022] is that decisions taken by housing associations relating to the consideration and refusal of management transfers are subject to judicial review.

The court also found that when a council or housing association makes a decision on a a management transfer application, the decision must not be generic. Rather, it must explain properly and adequately why its own policy criteria have not been satisfied to ensure the applicant understands why their application is being refused. This was the main ground on which T’s judicial review challenge succeeded.

What are the other implications of the judgment?

Other key implications of the case include:

  • Clarification around the definition of domestic abuse: Network Homes agreed that domestic abuse does not solely constitute physical abuse. This was in line with the definition of domestic abuse outlined in section 1 of Domestic Abuse Act 2021. As a consequence, the housing association must in future deem all forms of domestic abuse to come within the definition of the term when considering management transfer applications.
  • Requirement to make a homelessness application: Network Homes also confirmed that in T’s case there was no policy or requirement that she make herself homeless in order to access accommodation. Therefore, if Network Homes suggest that an applicant should make a homelessness application before a management transfer can be processed, caseworkers can point to this judgment as a basis for challenging that assertion.
  • Non-molestation orders: the judge in the case noted that Network Homes ‘will have well in mind’ points relating to the relevance of non-molestation orders and the history of the perpetrator. In future Network Homes should consider whether a non-molestation order is enough to protect a survivor (they cannot assume it is) and must instead consider the history and nature of the of the perpetrator’s conduct towards the applicant and their children.
  • Requirement to provide police or MARAC reports: the court clarified that Network Homes’ policy on management transfers does not require a police report or MARAC report be obtained in every case.

How can I find out more?

We have produced two detailed factsheets on the implications of the ruling, one for legal professionals and one for non-specialists supporting survivors of domestic abuse.

16Nov 2021

What’s wrong with the new JR bill?

16th November 2021|Judicial review|

The Judicial Review and Courts Bill has been slowly making its way through Parliament since July. In our latest blog, senior solicitor Paul Heron looks at the first two clauses in the bill and explains why they should be of concern to lawyers and social-justice campaigners.

(You can read the government’s Explanatory Note about the bill here, and check what stage the bill is at here.)

Judicial review is the legal procedure by which the courts examine the lawfulness of a decision made, or action taken, by a public body. It is a key tool used by PILC and other public-interest lawyers to challenge injustice and human rights abuses on behalf of clients.

When undertaken strategically, judicial review may not only help an individual claimant—it can also have a wider social impact. A successful judicial-review claim can result in a public body being forced to change an unlawful law, policy or practice. Other public bodies may also have to change their rules in line with the court’s judgment.

Judicial review can expose, and curb, the sexist, racist and anti-working class nature of UK law and policy. For example, PILC has assisted campaigners to use judicial review to good effect in challenging the selling-off of community assets to the highest bidder (Mohinder Pal v London Borough of Ealing [2018] EWHC 2154 (Admin))

Unfortunately, judicial review is an expensive course of action. Legal aid for such challenges, though available, has been limited in recent years.The Legal Aid Agency is increasingly reluctant to fund challenges to cuts in services or administrative-law decisions that may be viewed as having a ‘political’ dimension.

What’s wrong with the new bill?

We’re particularly concerned about the first two clauses of the Judicial Review and Courts Bill, which deal specifically with Judicial Review.

Clause 1 seeks to amend the Senior Courts Act 1981 (SCA) to revise the effect of a Quashing Order. Currently, when the High Court such an order, its effect is immediate, and the decision that has been ruled unlawful is treated as if it had always been invalid. A Quashing Order is not only an effective tool for the Court; it also offers clients a clear sense of justice and opens the door for potential damages in relation to the actions of the public body concerned.

The government clearly intends to water down the impact of a Quashing Order. First, the bill would give the courts power to delay the effect of an order until a future date. This would allow an unlawful decision, policy or practice to be treated as if it were still valid until that date.

Second, the bill would create the presumption that a Quashing Order would not have any retrospective effect. This could shield the government from accountability for subjecting people to unlawful policy or practices.

It’s worth considering the practical implications of such an amendment. In the case of Gunars Gureckis and others v Secretary of State for the Home Department [2017] EWHC 3298 (Admin), brought by PILC, the High Court quashed policy guidance from the Home Office that had led to the detention and deportation of homeless EU citizens. The policy was immediately suspended, and the Home Office was forced to stop detaining EU nationals who were sleeping rough. The quashing of the policy meant that those affected could secure compensation for unlawful detention or removal.

The changes proposed in Clause 1 could have prevented the policy being deemed unlawful retrospectively. It might also have stopped those affected from obtaining financial redress.

Clause 2 seeks to amend the Tribunals, Courts and Enforcement Act 2007, and reverse the impact of R (on the application of Cart) (Appellant) v The Upper Tribunal (Respondent) [2011] UKSC 28. This judgment allowed people who had been refused permission to appeal by both the First-Tier and Upper Tribunals to apply for judicial review in the High Court.

‘Cart’ judicial-review claims are currently a last resort in immigration and social security cases, and often involve fundamental aspects of human rights law. In immigration cases, issues relating to torture and the permanent separation of families are frequently at play. Access to justice in these areas has already been badly hit badly by cuts to legal aid.

The proposed reform would close another door in the face of people who have been trying, often for years, to assert their fundamental rights.

The Judicial Review and Courts Bill is now at the Committee stage. There is still time to make fundamental changes, which could include removing Clauses 1 and 2. Unfortunately, given their significant majority, it is likely that the government will be able to force the bill through with both clauses intact.

As when Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) introduced cuts in funding for legal aid, the measures contained in this bill will disproportionately affect the poorest in society. Now, as then, there is an urgent need for lawyers to join with grassroots groups and the trade-union movement in opposition to a retrograde piece of legislation. The legal community’s failure to build such alliances around LASPO had severe consequences. We must not make the same mistake again.

24Sep 2020

Judicial review under attack

24th September 2020|Judicial review|

With an ‘independent’ review of judicial review underway, PILC senior solicitor Paul Heron blogs about the need to defend access to justice from ideological attack.

The government is at war with public law.

On 27th August, the Home Office complained that ‘activist lawyers’ were ‘delaying and disrupting’ the operations of the UK immigration system. The claims, made in a video that was later deleted, came in response to judicial review challenges brought on behalf of desperate migrants to prevent their potentially unlawful removal from the UK.

Even the Law Society, so often a poodle to the Ministry of Justice, was forced to yelp, reminding the Home Office that:

[s]olicitors advise their clients on their rights under the laws created by Parliament. To describe lawyers who are upholding the law as ‘activist lawyers’ is misleading and dangerous. We should proud that we live in a country where legal rights cannot be overridden without due process, and we should be proud that we have legal professionals who serve the rule of law.

The government does not seem to agree. By announcing a review of judicial review, it has signalled its intention to reel back access to justice by further limiting the power of the courts to hold public bodies to account.

Some believe this is the government’s revenge for the Supreme Court’s interference with Boris Johnson’s prorogation of Parliament over Brexit. But while that may be a factor, it is not the only reason why judicial review is under attack.

Neo-liberalism and the law

The justice system does not operate in a vacuum. Law operates under the same socio-economic pressures as society as a whole. We live in an era of neoliberalism, during which access to justice has come under severe threat along with a range of other democratic rights.

Since the late 1970s, most of the Global North has moved from a position where state ownership undergirded national economies to one in which market forces hold sway. Under Thatcher and Reagan, radical economic reforms stripped away state support for industry while protecting private interests on behalf of the 1%. In the UK this meant bringing to heel the power of the trade unions. Collective bargaining and the closed shop were among the targets of a concerted assault on the power of organised labour. Over the past forty years, privatisation and deregulation have been the keynotes of economic policy in the UK, leading to mass unemployment, poverty, and a huge increase in the gap between rich and the poor.

Neo-liberalism was, and is, a political project carried out by the corporate capitalist class in reaction to the growing political power of the organised working class and other progressive forces. Its success as an economic and social ideology has been underwritten by counter-reforms and regressive legislation.

It is no accident that welfare provision, wages and the ability of the working class to organise have been simultaneously assailed.  Capitalist economics forms the foundation upon which legislative reform is based, as well as providing the framework within which it operates.

Defending an imperfect system?

The current system is far from perfect. The law courts are unfavourable terrain for socialist and progressive movements. To cite just one example, the Communication Workers Union (CWU), which represents postal workers, recently had a democratic strike ballot overturned.

But the courts have been a vehicle for small and significant victories. In 2017, the Gureckis judgment overturned a policy that targeted EU rough sleepers for deportation, with the High Court finding it to be in breach of EU and human-rights law.

Perhaps in response to such challenges, the 2019 Conservative manifesto had judicial review in its sights:

After Brexit we also need to look at the broader aspects of our constitution: the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; and access to justice for ordinary people. The ability of our security services to defend us against terrorism and organised crime is critical. We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government. We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.

Judicial review in its current form provides a fairly minimal check on the powers of government. Yet the government is apparently intent on reducing its influence further.

The terms of reference for the review of judicial review are as follows:

The review […] will consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.

The move delivers on a manifesto commitment to ensure the judicial review process is not open to abuse and delay.

Specifically, the review will consider:

  • Whether the terms of Judicial Review should be written into law
  • Whether certain executive decisions should be decided on by judges
  • Which grounds and remedies should be available in claims brought against the government
  • Any further procedural reforms to Judicial Review, such as timings and the appeal process

The review will be conducted by a nominally ‘independent’ panel, but there are doubts about how independent this panel will actually be. It is chaired by Lord Faulks, a Tory peer who was a justice minister during Chris Grayling’s catastrophic tenure as Justice Secretary. Lord Faulks has written critically on the subject of the role and power of the courts, including an attack on the Supreme Court’s ruling on the unlawful prorogation of parliament.

The panel also includes two barristers from 39 Essex Chambers, who have historically acted for the government in Judicial Review cases. Where are the barristers from Garden Court or Doughty Street, who typically act for claimants?

Judicial review in its current form is imperfect and exclusionary. There are major risks involved in bringing a case against a public body. Access to legal aid is severely restricted, with the Legal Aid Agency (LAA) carefully scrutinising what they perceive as  ‘political cases’. The issue of costs can be prohibitive.

Judges, meanwhile, are often biased—not a great deal has changed since Ralph Miliband wrote, in 1969, that:

the judicial elites, like other elites of the state system, are mainly drawn from the upper and middle layers of society: and those judges who are not have clearly come to belong to these layers by the time they reach the bench. Moreover the conservative bias which their class situation is thus likely to create is here strongly reinforced by the fact that judges are, in many of these systems, also recruited from the legal profession, whose ideological dispositions are traditionally cast in a highly conservative mould.[1]

Reform of the legal system is long overdue. But the government’s ‘independent’ review is not being conducted with the aim of increasing access to justice. Any changes that come out of it are likely to hinder the work of social-justice lawyers while failing to protect claimants from excessive costs.

We must keep a watchful eye on the government’s review of judicial review— and be ready to fight, not in defence of an imperfect system, but for the expansion of access to justice for all.

[1] Ralph Miliband – ‘The State in Capitalist Society’ p124 (Quartet 1973)