Courts are being used to conduct politics

Katharine Birbalsingh, the head teacher who won a High Court case to uphold a prayer ban at her school, has asked why the case was brought at all and why legal aid was available to the litigants. She is right to do so.

In the Conservative Party’s 2019 election manifesto, the following pledge was made: “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.”

If ever there was an example of judicial review being used to “conduct politics by another means”, it is the Michaela Community School case. It is dressed up as an issue about freedom of religion but is essentially the pursuit of a political agenda.

Ms Birbalsingh suggested that the pupil and her family received £150,000 in legal aid to fund the case but this is disputed by their lawyers, though without disclosing the exact amount. As Sir Jacob Rees-Mogg, the former Cabinet minister, put it: “Legal aid is there to protect people who couldn’t otherwise get proper representation for cases that must have a seriousness threshold ... Legal aid is not there to fund politics by legal means.”

This would not be an issue at all if the case had been disallowed in the first place. It was brought by way of the very judicial review process that the Government indicated should be curtailed. But far from being reduced, the practice has actually expanded significantly.

An assessment by the law firm Linklaters found that, in the early 1980s, there were around 550 cases per year (including immigration cases). Now, there are almost that many civil, non-immigration applications for permission alone per quarter.

This trend is set to continue, partly because of the higher expectations of the government and the services it delivers, the regulation of new technologies, and measures to address climate change. The jurisdictional move from Brussels to the UK has also had an impact.

Moreover, as Parliament confers wider and more complex powers on government and public bodies, the courts will have a greater role in determining and policing the limits of those powers.

The Government did manage to stem the growth of some kinds of judicial review for a while, but it has now grown again and needs to be limited, as promised in the 2019 manifesto. Have ministers any ideas about how this should be achieved?