This is poor stuff. Judicial reviews don’t get anywhere (they don’t get permission) if the only basis for them is disagreement with government policy. GLP cases have had success because they have identified cases where government has breached the law.
It is important to make that point because sloppy reporting of that kind feeds into a narrative that judicial review is just politics by other means.
It isn’t: it’s a different kind of accountability (and one necessary to underpin politics) - ensuring that government sticks to the rules that our politics produces.
Again, sloppy. We are talking about law made by politicians (procurement rules) and basic common law principles (eg rule against apparent bias): not “civil service red tape”. Ministers may put it that way: but journalists should not swallow that.
If government bodies back out of projects that have an arguable (even if controversial) policy rationale and a solid legal basis because they fear judicial review, that is due to bad decision-making, not aggressive lawyers or interfering judges.
Of course, government decisions will get challenged and public law has grey areas where plausible arguments can be run against you and there is a risk of losing.
But if decision-makers are comfortable with their decision and happy to see it exposed to the light, fear of judicial review is a very poor reason for not going ahead.

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More from @GeorgePeretzQC

20 Dec 21
Really important point by @PJTheEconomist. Many discussions of devolution focus on the *legal* powers of devolved bodies (in 🏴󠁧󠁢󠁳󠁣󠁴󠁿, 🏴󠁧󠁢󠁷󠁬󠁳󠁿 or English mayors). But their *fiscal* powers are equally critical: without the ability to raise their own taxes they are constantly supplicants.
Moreover, without their own fiscal autonomy, accountability for decisions is confused and poor.
Central government uses its purse strings as a whip, but hopes to evade responsibility for the consequences (see the current TfL drama) - and devolved government evades responsibility for its decisions by blaming Westminster parsimony.
Read 8 tweets
20 Dec 21
Important question here: what is happening to Frost’s review of retained EU law now that its promoter has abandoned the battlefield?
“Binning it” isn’t actually a bad idea - and that is so even if you believe that it’s likely that substantial improvement in regulation is possible be replacing carried-over EU law with new U.K. drafted rules.
The review had two strands. One was to go through all areas of retained EU law to suggest replacements.
Read 8 tweets
18 Dec 21
Worth noting Frost’s express admission that the current government’s chosen relationship with the EU places “burdensome”arrangements on GB businesses and has a “chilling effect” on trade and investment.
And that “regulatory burdens” on GB/EU trade will “get worse” as the current government succeeds in promoting divergence.
Read 13 tweets
17 Dec 21
Absolutely. And read @jillongovt’s piece below. If Case was asked to take on this role, he should have refused (he may well have been bounced into it, of course).
At the very least, he should have insisted on getting someone from outside to do the digging and ask the awkward questions - a sort of Counsel to the Inquiry (eg a retired senior police officer or criminal law QC.)
To use the traditional phrase, no one is going to - or should - believe that the Cabinet Secretary could investigate the matter “without fear or favour”.
Read 4 tweets
15 Dec 21
Worth noting, when claims are made about UK capacity to take swifter regulatory decisions outside the EU. NB, for those fascinated by the Protocol’s impact in medicines, that this means that the position is that in NI 5-11 year olds can have the vaccine while in GB they can’t.
(Of course, dangerous to generalise about regulatory capacity on the basis of one or a few cases, which may have various complexities. But that knife cuts both ways: and there are grounds for concern about MHRA resourcing after it lost a lot of income and work after Brexit.)
In the longer term - a point I and others have made - there is a real dilemma here post-TCA with no good options. Rough sketch of those options: -
Read 9 tweets
6 Dec 21
A couple of thoughts about this proposal, floated in today’s Times, for an annual “‘Interpretation Bill’ to strike out findings from judicial reviews with which the government does not agree”. thetimes.co.uk/article/boris-…
As written, that sentence raises more questions than it answers. What is meant by a “strike out a finding”?
If “finding” means “a ruling about what the law is” and “strike out” means “change the law” than that is not exactly revolutionary. If judges rule that legislation means “X” but Parliament doesn’t like X, then Parliament can change the law. (This happens all the time in tax law.)
Read 13 tweets

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