FAQs: Standing Up To Power

In the UK, the powers of the State are separated into three branches – the Government, our elected Parliament and the courts.

Every five years or so, we vote for who we want to represent us as our Members of Parliament. The political party which wins the most seats then chooses a Prime Minister who forms the Government.

We don’t vote for our judges, and they’re not picked by any political party. They are independent.

The three separate branches act as a balance and check on each other’s powers.

This sounds quite complicated, but it really just means every single person in the UK – no matter who they are – must act within law.

No one is above the law.

It also means that everyone gets the benefit of the law, and can expect to see the law enforced if they are wronged by someone else.

And the law is enforced by our independent courts.

The rule of law makes sure everyone can be held accountable for their actions and that no one is above the law. This is crucial to a functioning democracy.

Access to justice is the ability to enforce the law when you are treated unlawfully. Without this, the rule of law would fall apart.

Judicial review is a type of legal challenge a person can take against a public authority. It does exactly what it says on the tin – a judge reviews the lawfulness of a public body’s actions.

Judicial review makes sure ordinary people can stand up to power and challenge governments and other public bodies when they get it wrong. For instance, it’s thanks to judicial review that the Ministry of Defence now owes soldiers a duty of care no matter where in the world they’re stationed. And it also helped disabled people defend their rights during the pandemic.

Judicial review is a vital part of the rule of law.

Not just anyone can take a judicial review case.

A person must have a sufficient connection to the issue. For instance, it’s very unlikely a person would be able to challenge a decision affecting land in Yorkshire if they lived in Cornwall.

Judicial review must be a person’s last resort and they should have tried other ways to sort the problem first.

And a case must be started within three months of the public authority making the decision at the heart of the challenge.

So it’s pretty hard to take a case, and only about five per cent of applications to start the judicial review process get the go ahead.

People start judicial review cases to challenge public bodies when they get it wrong.

Joe Ousalice started a judicial review case against the Ministry of Defence after he was kicked out of the Navy and had his medals stripped away because of his sexual orientation. Because Joe was able to take legal action, his medals were returned, and the MoD has now introduced a policy to give medals back to all LGBT veterans dismissed in similar circumstances.

Magda challenged her local education authority for her young son Ian. Ian has autism and Magda knew he would need extra help to make the transition from nursery to school – but the school insisted on treating him the same as his classmates. Ian couldn’t cope with that, found school overwhelming and started acting up. The head teacher restricted him to only attending for an hour a day. With Ian’s whole education at risk, Magda started legal proceedings. After that, Ian was given the extra support he needed, and is now happy and settled at school.

In August 2019, armed police officers burst into the homes of journalists Trevor Birney and Barry McCaffrey, and arrested them. The police wanted to search their homes and offices following a documentary they had made about the unsolved murder of six men in 1994. The police wrongly claimed that confidential information included in the film had been stolen. Trevor and Barry used judicial review to show the searches were unlawful, and defend the right of journalists to protect their sources, and publish information in the public interest. The Police Service Northern Ireland later gave them an unreserved apology.

It’s not unusual for a judicial review case to be supported by a charity or an organisation. This is because the outcome of the challenge may be of benefit to more people than just those taking the case.

This is why the possibility of limiting access to judicial review is particularly concerning for some charities and NGOs.

For instance, when Joe Ousalice used judicial review to force the Ministry of Defence to return the medals that were stripped from him when he was forced out of the Navy because of his sexual orientation, the MoD introduced a policy to give medals back to all LGBT service people dismissed in similar circumstances. Joe’s case was supported by Liberty, and we also acted as his lawyers.

No one should be above the law, especially those in power. Our ability to challenge governments and public bodies in court is essential to keep power in check.

Limiting access to judicial review would seriously weaken people’s ability to hold governments and public bodies to account when they get it wrong.

The ability to challenge Government decisions was crucial during the pandemic. Judicial review established that disabled people who need to exercise more than once a day could do so. It led to Lancashire Police withdrawing wrongly issued fines. And it prompted the Government to announce emergency funding for survivors of domestic abuse.

We all want to live in a fair and just society, but if we’re unable to stand up to power, the Government – and all future governments to come – will effectively be above the law.

Human rights are about values we all hold dear – fairness, equality, dignity – and the Human Rights Act brings them to life.

For 20 years the Human Rights Act has protected everyone whether we realise it or not. It makes sure that public authorities act in a way which respects and protects our rights. And when they don’t, ordinary people can enforce their rights in British courts.

It can be used by everyone, from survivors of domestic violence, to disabled people and journalists. It has protected our right to protest and pray, to think what we like and say what we think, and to keep our private lives private.

Before the Human Rights Act came into force, people had to take their case through every UK court to eventually get it to the European Court of Human Rights. This took years and was ludicrously expensive.

In short, the Human Rights Act protects all of us, all the time.

The Government is trying to weaken the important mechanisms that help us stand up to power and enforce our rights. It has announced a “review” of our Human Rights Act and is looking at how the judicial review process works with a view to limiting people’s access to it.

This may sound fairly harmless but could place the current and all future governments above the law.

Being able to challenge governments and other public bodies is at the heart of our democracy. Restricting access to justice would effectively let the powerful dodge accountability, undermining fairness and the rule of law.

And if we’re unable to enforce our rights, they will become meaningless.

We all want to live in an equal, just and fair society, where governments and public bodies act in our best interests.

For that to happen, we must strengthen – not limit – judicial review, and we must keep the Human Rights Act intact and accessible to all.

We must not lose our ability to challenge injustice and stand up to power.

Liberty is working with a large and diverse coalition of human rights organisations, charities, campaigners, lawyers and grass roots groups to show why the integrity of our justice system must remain intact and – crucially – accessible to everyone.

No one should be above the law, especially those in power.