Carla (see bio below) has kindly written this blog for us as part of series of blogs we’ve commissioned as part of a Strategy Review of our Strengthening Civil Society (Law & Human Rights) programme. She’ll be joined by other contributors with views from Scotland, Northern Ireland and Wales over the course of 2025.
There has been no shortage of significant issues affecting our daily lives in the past five years. From Covid-19 and the fallout from Brexit to the cost-of-living crisis and the escalating climate emergency.
Significant in their own right, such issues also serve to highlight the pervasiveness of the law in our everyday lives. Think emergency legislation passed in response to the pandemic; the Retained EU Law (Revocation and Reform) Act, thankfully without the chaos of a sunset clause on the majority of EU derived secondary legislation; legislation providing for cost-of-living payments to those in receipt of means tested benefits; and a European Court of Human Rights ruling that the right to respect for private and family life includes an individual’s right to effective protection by the State from the serious adverse effects of climate change.[1]
Such issues also underline the enormity of the work of civil society in influencing the law; raising awareness about entitlements and obligations under the law; holding the government to account under the law; and challenging the law in equal measure.[2]
For the purposes of this post, I want to highlight from the first half of this decade some of the unintended consequences, positive and negative, that can arise when we engage in legal processes, particularly legislative processes and litigation. This is most definitely not to deter us from such work but rather to ensure that we enter into such work with our eyes fully open. I then want to cast a cursory glance towards what lies ahead.
On the legislative front…
… a lot of time and effort was spent by civil society organisations in 2020 and 2021 engaging in quick succession with the Independent Review of Administrative Law (IRAL), the Independent Human Rights Act Review (IHRAR), the government response to the review panels’ reports and/or the consultation exercises which culminated in the Judicial Review and Courts Act 2022 and the Bill of Rights Bill.
The breadth of the remit of the IRAL panel was eye watering: codification of the grounds for bringing judicial review, restriction on the types of decisions that could be judicially reviewed, amendments to available remedies, procedural changes including to time limits and who could bring a claim for judicial review. By any reckoning, the two single provisions dealing with judicial review which made their way into the somewhat misleadingly named Judicial Review and Courts Act were a complete climb down and testament to the power of concerted action by civil society, academics and the legal profession.[3] Even the power to suspend the effect of a quashing order, which had been a cause of concern, has been shown by the courts to be capable of being used to ensure the government is properly policed in its actions in response to a court ruling, rather than simply letting it get away with inaction.[4]
With the Human Rights Act (HRA) reform, ideology ran much deeper. The consultation which followed the IHRAR report read as though the independent review had never taken place, let alone that it had produced a detailed, evidence-based report of almost 600 pages supporting only modest changes to the HRA. The Bill of Rights Bill which was subsequently introduced to Parliament sought to entirely repeal the much-maligned HRA.
While the Bill of Rights Bill was eventually shelved, there was only limited time for a collective civil society sigh of relief. The attack on human rights and judicial oversight which the Bill represented continued but this time through provisions tucked away in sector specific pieces of legislation. For example, the Illegal Migration Act which provides that s3 of the HRA[5] does not apply to it, nor legislation made under it, and expressly prevents courts and tribunals from granting any interim remedy which would prevent or delay a person’s removal under the Act. This salami slicing approach made it much harder to prevent such provisions reaching the statute book.
On the litigation front…
…of the numerous successful and unsuccessful judicial review cases considered by the courts in the past five years, I want to focus on the Supreme Court case of SC and others v Secretary of State for Work and Pensions. (Full transparency, I was involved in it.) It concerned eight children in two separate families, both headed up by single mothers, who were affected by the two child limit. This policy essentially limits means tested benefits to the first two children in a family. Its purported aim is to make the social security system fairer by ensuring that, when deciding whether or not to have additional children, those in receipt of benefits are faced with the same choices as those who aren’t. The thinking is that as salaries aren’t based on the number of children a person has, benefits, even those whose very purpose is to cover the essential living costs of a child, should not either. The reality of course is that having a child is a lot more complicated than sitting down and working out their economic cost. Plus, a child has no say in whether or not they are born or whether they are born to a well-off family or one struggling to make ends meet despite the parents working.[6]
On behalf of the two families it was argued that the children were being discriminated against compared to adults: any adult without sufficient means would be entitled to means tested benefits whereas a child had no automatic guarantee to such and instead it would depend on their birth order. The Supreme Court did not accept that there was such a difference in treatment between adults and children. (It focused on who was legally entitled to the benefit rather than the underlying purpose of the benefit.) Furthermore, even if there was such a difference in treatment, the court said it was justified by virtue of the very fact that Parliament had passed the legislation:
There are no legal standards by which a court can decide where the balance should be struck between the interests of children and their parents in receiving support from the state, on the one hand, and the interests of the community as a whole in placing responsibility for the care of children upon their parents, on the other. The answer to such a question can only be determined, in a Parliamentary democracy, through a political process which can take account of the values and views of all sections of society.
I’ve highlighted this case, firstly, because it hopefully serves as a low point in judicial deference. Just three years earlier, a differently constituted Supreme Court had had no issue in holding that the interests of bereaved children in receiving some financial support after the death of one parent, where the parents had co-habited but not been married, outweighed the interests of society in promoting marriage even though Parliament had legislated to the contrary.[7] Secondly, the judgment is also relevant because of its criticism of NGOs bringing such types of strategic litigation challenges, whether in their own name or representing individuals:
In practice, challenges to legislation on the ground of discrimination have become increasingly common in the United Kingdom. They are usually brought by campaigning organisations which lobbied unsuccessfully against the measure when it was being considered in Parliament, and then act as solicitors for persons affected by the legislation, or otherwise support legal challenges brought in their names, as a means of continuing their campaign.
Such criticism is unfortunate. I’d like to think that it is reflective of, and therefore confined to, a particular time of heightened judicial and political sensitivities. It is certainly not a reason for civil society organisations not to engage in litigation where they consider a case has sufficient merit and that they, or those that they represent, are best placed to bring the challenge. It does mean that we need to be alive to other factors that can be at play beyond the strict legal argument and how it can feel at times that we are held to a different standard.
We need to be alive to other factors that can be at play beyond the strict legal argument…
Looking ahead…
…Hopes expressed that a Labour government may allow for civil society to move out off reactive mode are yet to be realised. From immigration to welfare benefits, the clear blue water between the two main political parties is looking decidedly unclear and distinctly murky. The one thing, however, that is clear is that digitilisation and automation will continue apace. That pace was accelerated in part by the pandemic itself when so much was forced online from schooling to doctors’ appointments, and many actively welcomed the convenience of doing things remotely.
The principles of public law and judicial review, laid down in a pre-digital world, need to show that they are adequate and flexible enough to address today’s challenges
What technology, digitilisation and automated decision-making mean in terms of social justice is much more nuanced than we have been used to. It is not a clear cut, black and white, for or against area. It is also a field where much is happening without the need for legislation (e.g. the DWP’s move to making universal credit digital by default and the Home Office’s move to e-Visas) and so without the opportunities for influencing and amendment which the legislative process provides.
There is also a question as to how to frame legal challenges when the use of undisclosed algorithms mean that it is unclear what information decisions are even based on and who (individual or algorithm) is making what decision (screening or substantive). The principles of public law and judicial review, laid down in a pre-digital world, need to show that they are adequate and flexible enough to address today’s challenges. The sheer pace, scale and lack of transparency all present challenges to civil society engaged in using the law to achieve positive social change, but we simply accept these developments at our peril.
About Carla
Carla Clarke is a qualified lawyer (E&W). She has sought to use the law as a tool for social justice and, through litigation, to embolden those whose voices are often overlooked to tell their stories and to hold governments to account. She trained with the UK government before subsequently working at various NGOs, including Minority Rights Group International, Child Poverty Action Group and the Public Law Project.
[1] Verein Klima Seniorinnen Schweiz and Others v. Switzerland (app no. 53600/20) (9 April 2024)
[2] Work of civil society organisations in relation to the EU Settlement Scheme, requirements under it and the rights of those with pre-settled status, is a prime example that straddles all such aspects of engagement with the law.
[3] For a list of some of the responders to the IRAL itself see https://essexcaji.org/2020/11/04/collection-of-responses-to-the-independent-review-of-administrative-law-iral/. This is by no means a complete collection and the review panel refused to publish the responses.
[4] https://insights.doughtystreet.co.uk/post/102in1p/suspended-quashing-orders-and-rolling-judicial-review-as-a-means-of-monitoring-co
[5] Section 3 HRA requires legislation to be interpreted and applied, as far as possible, in a way that is compatible with ECHR rights.
[6] The majority of families affected by the two-child limit are in work.
[7] In the matter of an application by Siobhan Mclaughlin for judicial review [2018] UKSC 48.