Rachel Morris reviews the Government’s repeated unlawful behaviour, concentrated in the Home Office

The Home Secretary is being taken to court – a phrase with which the country is becoming all too familiar.

The latest challenge is mounted on behalf of at least 800 Ukrainians facing visa delays through the ‘Homes for Ukraine’ scheme. A pre-action protocol letter to the Home Office asking it to “sort out the endless muddles and tangles” could be followed by a judicial review of the visa policy.

The members of the two groups bringing the case are would-be sponsors of Ukrainian refugees, who say that there have been “inordinate and unreasonable delays” in visa application processing, putting refugees in grave danger and the hosts under great stress.

The groups will launch online crowdfunding as legal costs may be up to £15,000. If the Home Office ends up fighting a legal case and loses or settles out of court, it will be taxpayers footing the bill.

When citizens can no longer rely on their government to follow the law in formulating policy, they end up paying at both ends. And there are other, less quantifiable, costs when disorder and lawlessness become entrenched in a system meant to regulate law and order.

On 25 April, Priti Patel was forced to retreat from her policy of ‘refugee pushbacks’ in the English Channel mere days before High Court judicial review hearings were to begin. The policy authorised Border Force officials to physically prevent migrant vessels from reaching land and instead redirect them to France by force.

The challenge was brought by several groups claiming that the policy would breach, among other things, the Refugee Convention and international maritime law. They withdrew the claims when Patel U-turned, the Home Office agreeing to pay their costs.

According to documents circulated within the Home Office last year, Patel was warned by the Attorney General’s office that it should expect a legal challenge over the Channel pushback policy, that this could be “reputationally damaging”, and would force the Home Office to disclose potentially embarrassing documents.

Patel instead insisted that the policy had a legal basis. Clare Moseley, founder of Care4Calais, said after the U-turn that: “We’re delighted that no more time or money will be wasted on this idea but it’s a shame it took a legal challenge from our charity and others to put an end to it.”

Patel is likely to face further challenges against her controversial plan to send asylum seekers to Rwanda.

Civil servants have no right nor power to override a minister, even when they believe a policy is illegal. Strong concerns were expressed about Patel’s partnership with the Government of Rwanda, to fly and hold asylum seekers there, but she issued a rare ministerial direction to overrule civil servants regarding the scheme’s delivery of ‘value for money’.

It is only the second time in 30 years that such an order has been enforced by a minister – issued when there is objection to a policy from a permanent secretary (the most senior civil servant in the department) – the first being to expedite the Windrush compensation scheme prior to legislation.

In February, the Centre for Women’s Justice launched a CrowdJustice campaign to raise funds for legal action against the Home Secretary. This is based on decisions around the Angiolini Inquiry, which is inspecting the police career of Sarah Everard’s rapist and murderer but not the culture of Met policing. The centre is supported by more than 20 national gender violence organisations, which also object to Patel’s refusal to take action on other incidents of police violence against women and girls

The Channel pushback case and other recent challenges had support from the Good Law Project, a not-for-profit campaign organisation using law to protect public interest, which also relies on donations.

Why does it take legal challenges from charities and other third sector groups, with public financial support, to ensure that the Home Secretary behaves lawfully?


Checks and Balances

It is not only Priti Patel’s department. The Good Law Project is in the High Court against the Department of Health and Social Care over multi-million-pound COVID testing contracts awarded secretly to Abingdon Health without normal tendering procedures.

Discovery in the case revealed internal emails showing that Government lawyers deemed the contracts potentially unlawful, as they bypassed procurement procedures, but that ministers pushed ahead regardless. The then Health and Social Care Secretary Matt Hancock urged his team to go “hell for leather”, while civil servants described the subsequent testing programme in emails as “unlegit” and “no way to do business”.

Is there no obligation by Government ministers to approach the state’s finances with probity and a duty of care? Well, yes. It would take a book to outline this in full, but in brief: an accounts officer within each department has such responsibilities, and ministers are required under the Ministerial Code to heed their advice. The comptroller and auditor general operates independently to support parliamentary scrutiny. And relevant select committees can ask questions publicly about how public money is used.

Ultimately, Parliament and the prime minister decide the outcomes of a lack of financial probity under a complex web of codes and systems. And the electorate decides who will comprise that Parliament and prime minister, every few years. If the prime minister stands behind a minister come what may, little change can or will ever occur.

Lest we forget the £370,000 settlement with senior civil servant Sir Philip Rutnam, allegedly forced out of the Home Office for intervening in Patel’s alleged bullying of staff. Or a junior employee at the Department for Work and Pensions bringing a complaint of bullying and harassment against Patel and the department, settled for £25,000 in 2017. Or Boris Johnson driving his own ethics advisor to quit by refusing to sack Patel despite a formal investigation finding she bullied civil servants. Even so, she remains a Cabinet minister – still clinging to the wreckage of one of the ‘great offices of state’.

Judicial review emerged slowly over centuries as a means of allowing government actions to be challenged by citizens, or at least those with sufficient ‘standing’, or centrality to a complaint. It gives us an avenue to assert our fundamental rights, to test the lawfulness of public decisions, and seek remedies for wrongs.

The Government introduced the Judicial Review and Courts Bill in July 2021; it became law on 28 April. The Law Society is concerned that some of its measures could prevent successful claimants and others affected by an unlawful decision from receiving a full remedy, and that important points of law or procedural fairness could remain unaddressed.

We should be concerned that this Government, apparently so bent on breaking existing laws and norms, could yet further attempt to weaken one of the few balances between state and citizen power.

It is a rare bit of good news in the current climate that there remains a bulwark holding back a seeming tide of official mendacity and illegality. But, even so, by the time we take ministers to court – if we can – our time and money has been wasted, lives ruined, trust damaged. We also have to pay a third time too, down the line, to put all of this right.

The cheapest, quickest remedy, which requires no crowdfunding, no privatised justice, may be to see Priti Patel lose her job at long last. What more will it take?

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