Good Law Project sets up Scottish office amid concern over 'bullied' English judges
The Good Law Project, which is behind several well-publicised court challenges against the UK Government, said courts in England and Wales are under enormous political pressure and Scottish judges enjoy greater protection.
Director Jolyon Maugham KC said the move will also aim to increase scrutiny of the Scottish Government.
The Good Law Project, a not-for-profit that uses crowd-funding, has been involved in a number of headline-grabbing cases, including around Brexit and the use of a “VIP lane” for the award of personal protective equipment (PPE) contracts during the pandemic.
Mr Maugham said the organisation is now seeking to hire a Scots law solicitor, who will be seconded to an Edinburgh law firm but will work exclusively on Good Law Project cases. An external affairs role is also being advertised to handle media liaison and help in identifying the right cases to bring in Scotland.
Mr Maugham said the campaign group is viewing its new Scottish office through “two distinct lenses”. Speaking to Scotland on Sunday, he added: “One is, whenever you have a government that's been in power for a while, there's a need for proper scrutiny, proper accountability, including the scrutiny and accountability that the courts can deliver. We would like to play our part in delivering that in Scotland as we play our part in delivering it in England.
"From time to time, we get sent stories about what the Scottish Government have got wrong and invited to litigate in Scotland, as we litigate in England. It's difficult for us to do that from afar, and it's difficult for us to do that in a world in which we haven't got any Scottish-qualified lawyers, and we'd like to remedy that state of affairs. And that's important. The law of England and Wales is one law, but Scotland has its own legal system.
"And the other aspect to it, equally important I think, is that the Westminster Government resides – domiciled is the correct legal term – throughout the United Kingdom, so that it can be sued anywhere in the United Kingdom. The courts of England and Wales are under enormous pressure from the executive, the Westminster executive, and the data shows that their propensity to hold the Westminster Government to account is massively diminished. There's been a sort of halving in the proportion of judicial review cases commenced that have resulted in a finding adverse to the Government.
"And that's not because this Government is a real believer in acting within the law. It's because courts in England and Wales are feeling under great pressure.
"They're feeling bullied, they're feeling under duress, Government is routinely threatening them, and they're reacting by sort of drawing in their horns and not doing the very important work that our constitution requires the rule of law to do.
"And we think that judges sitting in a different political context, judges sitting north of the border, with their own legal system, may not feel under such severe pressure and may be able to do the job of holding the Westminster Government to account better than English judges can."
Mr Maugham said it is "totally orthodox among public law lawyers in London that it's becoming difficult, almost impossible, to win judicial review cases".
He said: "The Acts of Union and the Treaty of Union protect the separate Scottish legal system, and remove, or at least limit, the extent to which the Westminster Government can legislate away the right that the Scottish courts have to hold to the rule of law the Westminster Government. And the English and Welsh courts don't have that protection.
"So the constitutional context protects Scottish courts better than it protects English courts from executive interference."
The first case taken forward by the Good Law Project’s Scottish operation will likely relate to the prorogation of parliament in 2019, Mr Maugham said. His organisation previously worked with a group of politicians to secure a ruling that the suspension was unlawful.
As well as that initial prorogation case, which was heard in Scotland’s Court of Session and later the UK Supreme Court, the Good Law Project was also involved in a case in Scotland in 2018 that led to a ruling that the UK could unilaterally halt Brexit.
Mr Maugham said the Good Law Project has “lots of support north of the border”.
He pointed to comments by Rishi Sunak during the Conservative leadership race in August, when the now-Prime Minister pledged to “call time on politically motivated cases being brought before our courts”.
Mr Maugham said: "If you imagine a world in which Government makes good on its threats to close down judicial review, they can do that in England, there's no constitutional protection for judges in England, but they'll find that much more difficult to do in Scotland, because it would involve breaching the Acts of Union and the Treaty of Union which date back more than 300 years. So from our point of view it feels like a bit of diversification – we're de-risking the Good Law Project from a rule of law point of view.
"Yes, Scottish judges are better protected than English judges, and so Scotland might become an even more important jurisdiction when it comes to holding power, both in Westminster and in Edinburgh, to account."
Asked for comment, a spokeswoman for the judiciary in England and Wales highlighted that all judges swear the judicial oath to hear cases “without fear or favour, affection or ill will”.
A UK Ministry of Justice spokeswoman said: “The Government will always uphold the safeguards that support courts’ independent decision-making. The ability of judges to act free from any external influence or political motivation lies at the heart of our justice system and is absolutely fundamental to our democracy.”
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