Judicial Review

On Thursday 24th February 2022 I witnessed history being made. Anthony Brown's request for a judicial review was heard.

What was he asking for? It's complicated. Anthony's claim is that there is a group of people for whom current legislation is discriminatory. The Judicial Review seeks to bring this to the attention of a judge. If that judge agrees with Anthony that the legislation is discriminatory for this group of people (referred to in the case as a cohort) then this will lead to the legislation being changed. Lawyers on behalf of the UK government will be trying to persuade the judge that there is no change necessary.

The review was scheduled to begin at 10.45. Normally judicial reviews only last half an hour or so before a decision is made; the judge had already recognized that this would be a complicated case, and scheduled two hours for it. In the end, the court spent the whole day on the matter. And, as yet, there is no decision.

Here's how it played out.

I'm there with other supporters of Anthony's claim, outside courtroom number 2 in the law courts on the Strand, in London. Anthony and his legal team are here: a barrister, Rowan, and Max whom we've met before, who has done most of the work in preparing the case for court. A young trainee barrister is also with the team. Aside from Anthony, she will be the only person among the various legal people taking part in the review who is not white and male.

There are four doors into the court, of which right now we can see only two. One door is for claimants and the other for defendants. Anthony is the claimant, and the UK government are the defendants. Claimant and defendant each have their own barrister to speak for them. So we go through one door, and the government's legal team - a barrister with his own backup lawyer - go in through the other. Already in the room is a judge, sat high above the rest of us, and two more legal types whose role is unclear, but it looks like they are documenting the proceedings. They've presumably come in through the other doors, behind the judge.

The judge welcomes us. Other than being white and male he is not a stereotypical judge. He has no wig, and his accent is a long way from RP. Proceedings quickly begin. This is nothing like what we have learnt from seeing the law play out in films and TV.

These are three people - claimant, defendant and judge - having a careful conversation trying to achieve clarity over a complicated state of affairs. The judge needs to achieve clarity as he is the one who has to decide what, if anything, needs to be done.

So first he works to get clear in his head what the claimant, is saying. He and the claimant do this in an almost conversational way. The claimant will state his case, and whenever the judge does not understand or is not clear then he will interrupt. He is friendly, but also very firm. At times the defendant will pipe up with something aiming to speed the explanation and the judge will cut him off abruptly - he will get his chance to tell his side of the story. After a while he gets the message; we do not hear from the defendant again until mid-afternoon.

The judge starts out by trying to get clear what defines the cohort of people whom Anthony says are being discriminated against. This takes us most of the morning, and I still don't think we are 100% clear. The cohort consists of people who are defined by how their ancestry and presence or absence from the UK at various times relates to various pieces of UK immigration legislation that have been made since 1971. These are people who might loosely be said to have been affected by the Windrush scandal but the judge needs something clearer than that. He and the claimant discuss various individual cases and the judge keeps asking: in the cohort or out? Some of them are in, some of them are out. There are also references to past cases. Is this the same definition as used in Swift? So are you saying that Howard is wrong on that? If Howard is wrong, our barrister will suggest this, making sure he includes a "respectfully". That is one of the few places where you can see that this conversation is taking place in a court of law, as is the way that the defendant has to keep quiet for now. There are both formal and informal rules at work.

I am a computer programmer. I am familiar with what they are trying to do. I imagine myself trying to write a computer program that asks various questions of a person after which it says whether or not they are in the cohort. That program would have lots of ifs, ors, ands and except whens in it. Different questions will get asked depending on past answers. It's not complex, but it is complicated. And it is easy to get it wrong. For the judge, getting it wrong means some people will be unfairly excluded or included. Real lives will be affected, lives that have already suffered unfairly at the hands of the state. I can see why he is taking such care.

So, just before we break for lunch we start on part two: trying to define the nature of the discrimination this cohort is suffering from. This takes less time, but is by no means simple. A phrase that will recur is "British in all but name".

If someone is applying for British citizenship, you might think that means that they are by definition a foreigner. But this is a category error. To be British in not the same as having a UK passport. You can be British and never have applied for a UK passport. People who arrived in the UK on the Windrush came from Jamaica at the invitation of the British government. For some of these people their only proof of Britishness was the landing pass that let them into the country. These passes were destroyed by the government not long before the Windrush scandal broke. Unless they have already applied for citizenship, such people and their descendants will find themselves British in all but name.

If a foreigner applies for UK citizenship it is reasonable to ask questions such as: are they of good character? Do they have a criminal record? But if someone is British in all but name, is it reasonable? Anthony's argument is that it is not reasonable, it is discriminatory. And our current legislation requires these British in all but name citizens to jump through the same hoops (another recurrent phrase) as foreigners have to jump through.

So, to summarize the claimant's claim. The cohort attempts to describe with clarity what we mean by a particular group of people who are British in all but name. And the fact that our legislation treats these people the same way as foreigners is discriminatory. What have you got to say about that, defendant on behalf of the UK government?

Essentially, the defendant says: we've got a bill for that. It is not law, but it is going through Parliament right now. It will be law soon, so just hang on. We're working on it.

But it is not law now. And every day that the government continues to put up hoops for Windrush victims to jump through is another day that they are being discriminated against by the state, telling them they are no more British than any foreigner. Some of them have and will die not knowing any better.

The defendant says a few other things. They tell us that parliament decides who is and is not British, not the courts. They say that the claim is challenging; the judge corrects them, saying it is ambitious. They offend all of us by saying that it is public money being handed out to Windrush victims and the government has to be careful with the public purse.

And that is just about it. The judge talks a bit more with the claimant to see if there is anything they want to add having heard from the defendant, but there is nothing more of substance.

And then, at somewhere around 4pm, the judge tells us what he thinks.

He says that, very unusually for a judicial review, he will not give his decision right now. He does not apologize for this. He says that this is what he has to do in order to give the claim the justice it deserves. He does not say when his decision will be made, and then lays out the process that will occur when it is made. He thanks everyone in the court for the work they have done, including us, Anthony's supporters.

And we're done.

So, why did it feel historic if no decision has been made?

This is not the first time the injustices of Windrush have come to court: there is Swift, there is Howard, there are others. But those are individual cases. This felt like the first time that someone has come forward on behalf of a whole group of people, that cohort we spent so long trying to define clearly, and make the claim that all of these people are being discriminated against by current legislation. This is, as the judge rightly said, an ambitious claim. Today, those of us who were in the court could see that not only is it ambitious, it is a claim made on solid foundations.

It felt historic because it felt like we were being taken seriously by one of the pillars of the British establishment. The judge listened to our claim with complete respect. He understood what we were saying. He has made it clear that he cannot yet say what the legal implications of that understanding will be, but just to be heard and understood felt historic.

It felt like we could have had no fairer hearing.


Miles Doubleday (white, male), 25 February 2022