11/10/2022

Hand in glove? Public affairs and public law

Gordon Nardell KC (Twenty Essex) and Ed Bowie of DRD Partnership describe how public affairs and public law can best combine to get Ministers to rethink controversial plans.

For years, exasperated Ministers have pointed the finger at the courts for a government’s failed policies. Instead of a sober analysis on where a policy may have gone wrong, a narrative has evolved that public law tools have grown in their scope to frustrate the business of government.

To that end, attacks on ‘lefty’ and ‘activist’ lawyers were used to justify the Judicial Review and Courts Act 2022, which ended the ability to appeal against decisions of certain tribunals mostly relating to immigration/asylum cases. That theme sets the tone for proposals to scrap the Human Rights Act; meantime, leaked documents indicate that further reforms are on their way.

All of this suggests that public law challenges against policy must be effective; clearly, Ministers don’t like them. However, statistics show that just 2.2% of judicial reviews lodged actually succeed. Even those that ‘succeed’ often produce a pyrrhic victory, leaving Ministers free to take much the same decision again. This reflects the limited grounds on which the courts can review decision-making, with the focus mostly on the process rather than the substance of a decision.

So, when is a public law-led challenge to policy the best route to take? And given their limitations, when would those public law mechanisms be better used to support or integrate into a public affairs strategy?

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