affiliated to the International Association of Constitutional Law
The Government claims that its proposals to restrict access to judicial review are based on evidence that growth in the use of judicial review has been fuelled by abuse of the system. It is suggested that judicial review has become an impediment to government policy and economic progress and that reform is needed ‘to tackle red tape, promote growth and stimulate economic recovery’. The government’s proposals are contained in a MoJ consultation paper published on 13 December 2012. The reforms are said to be ‘simple and proportionate’, and capable of being introduced ‘quickly’. The consultation closes on 24 January.
The following comments are based largely on empirical work undertaken by the University of Essex and the Public Law Project in a series of studies in recent years, including The Dynamics of Judicial Review Litigation: The Resolution of Public Law Challenges before final hearing; Bondy and Sunkin PLP 2009 (The Dynamics of JR report), and their current Nuffield funded research on the effect and value of judicial review (due to be published Summer 2013). This body of work has generated what is probably the most comprehensive independent information on the use and impact of judicial review in England and Wales in recent years.
This blog does not set out a detailed response to the consultation. Its aim is to question the evidence-base for the proposed reforms and to propose that if the government is genuinely concerned to relieve pressure on the courts and hard-pressed public bodies, these reforms are not the way to go and may well have the reverse effect. The Public Law Project will submit a full response to the consultation which will be available on its website.
Myth: there has been a significant increase in the number of JR challenges
We are told by the MoJ that, “There has been a significant growth in the use of JR to challenge the decisions of public bodies. In 1974, there were 160 applications for JR, by 1998 this had risen to over 4,500, and by 2011 had reached over 11,000.”.
Over the past few weeks these headline figures have attracted a good deal of attention and several points are now clear. The most important is that these figures alone provide a potentially grossly misleading impression of the degree to which government has been challenged in the courts.
First, comparisons with the use of JR as far back as 1974 are almost totally meaningless, not least because in the world before O’Reilly v Mackman  2 AC 237 claimants did not need to use JR in public law matters, and the number of challenges to the legality of government decisions brought by way of ordinary civil proceedings was (and remains) unknown. We simply do not know how often government was challenged in the courts before the 1980s in ordinary proceedings and we still don’t have data on this.
Second, the increase in the scale of JR litigation is substantially attributable to immigration and asylum cases. This is recognised by the government, and in any event this is not an expressly targeted area for this round of reforms. Immigration and asylum challenges have been the subject of numerous statutory and procedural changes in recent years. Most such challenges have already been transferred to the First-tier Tribunal (Immigration and Asylum Chamber), a move which is expected to reduce significantly the volume of JRs in the Administrative Court. Given these changes, it could be misleading to rely on data relating to immigration/asylum JRs in order to justify reforms to the JR system as a whole.
Third, and following on from the above point: it is now widely acknowledged that once immigration and asylum claims are placed to one side, there has been little change in the volume of JR claims over the last 10 years or so. Since the mid 1990s the volume of non-immigration/asylum JRs has remained fairly stable at just over the 2,000 per annum mark. This is evidenced also by the official statistics as is clearly shown in the Dixon and Hood graph. As Harlow and Rawlings remind us, these numbers are ‘infinitesimal’ when compared with the scale of government decision making (Harlow & Rawlings, Law and Administration, p 712).
No one knows how many public decisions are being made and we therefore cannot tell whether or not there has been a change (let alone any increase) in JR activity relative to the scale of government decision making over past decades. Nonetheless, it is clear that, beyond immigration and asylum, there has been no radical growth in the use of JR, and quite possibly no increase at all.
For many informed observers, it is not the growth in JR that is surprising and disconcerting. It is that beyond immigration, JR has not grown more, despite factors such as the enactment of the Human Rights Act 1998 and the general heightened profile of the law and courts.
Myth: JR is an impediment to economic growth
The government is concerned about the adverse impact of the use of JR on public finances and development projects. The consultation says that JR ’ … comes at a substantial cost to public finances, not just the effort of defending the legal proceedings, but also the additional costs incurred as a result of the delays to the services affected. In certain types of case, in particular those involving large planning developments or constructions where significant sums may be at stake, any delays can have an impact on the costs of the project’ (para 34).
It would be interesting to see what are the ‘substantial costs’ generated by JR litigation, or more specifically on allegedly frivolous JR litigation. As far as we are aware no comprehensive information on this is available. Even the much more straightforward question of determining how much JR activity directly or indirectly relates to economic activity is extremely difficult to answer on the basis of our current knowledge.
Certainly, in order to determine how much JR litigation is likely to be economically important we need to look behind the official statistics relied upon by the government because the official statistics do not provide detailed figures on the types of JR claims brought. Were we to look behind the official statistics to attempt to discern the number of ‘economically relevant’ claims we would almost certainly find (assuming we could identify them) that these claims constitute only a small proportion of the caseload.
Judicial review claims cover a wide variety of subject matter, including housing, education, community care, prisons, police, mental health, to name but a few. They are brought against a wide range of public authorities including central government departments, local authorities , courts, PCTs, the police, many different prisons, the GMC, ombudsman and so on. A high proportion of claims concern local authority services and are likely to have been brought by disadvantaged and vulnerable claimants. Given the range of issues litigated, it is not surprising that relatively small numbers of claims concern particular types of issue or affect particular types of public body.
Very few public authorities are challenged more than a handful of times a year. Research on JR litigation against local authorities over the six years 2000-2005 inclusive, for instance, showed that over that period 85 per cent of local authorities attracted no more than one or two challenges per annum (Maurice Sunkin et al Mapping the use of Judicial Review to Challenge Local Authorities in England and Wales (2007) Public Law, 545, 550). Moreover, over half of the challenges to local authority decisions concerned housing related issues, including homelessness, (a factor highlighting the importance of JR to the most disadvantaged).
Aside from local authorities, the main other targets of JR are the Secretary of State for Justice, the Secretary of State for the Home Department, the Parole Board and Prison Governors. Few other central government departments are challenged more than rarely.
Planning JRs are specifically referred to by the government as being of concern, having potential adverse effects on economic development. A recent parliamentary question revealed that between 1 January and 31 November 2012 there were 169 applications related to planning.
The above figures relate to claims for permission. However, given that one of the main concerns of the government is delay, the cases most worrying are likely to be those that go to final hearing rather than those that proceed no further than the permission stage. In our current study of JR we concentrate on this class of case. Having recorded all reported final JRs for 2011 we found 30 planning JRs that went to final hearing, of which only six were brought against central government. Some of these may have had economic ramifications, but this small number hardly justifies restricting access to JR across the board.
Other planning matters will have been litigated by way of the specialised planning appeal system, but these are not JR claims and reform of the JR process would not directly affect these. Moreover, reforms designed to reduce the number of ‘hopeless‘ claims is unlikely to have much effect on the quantitatively few (but qualitatively important) planning matters that will still end up in the Administrative Court.
These data altogether do not paint a picture of a government being overwhelmed by JRs, nor do they support a credible claim that JR presents a significant impediment to economic progress.
Myth: there is widespread abuse of the JR process
The consultation document says that ‘… the Judicial Review process may in some cases be subject to abuses, for example, used as a delaying tactic’ (para 2).
That some abuse occurs is widely acknowledged and the judiciary is alive to its risks and have been astute in developing techniques – especially the use of costs orders – to penalise abuse where it occurs (see e.g. R(on the application of Hamid) v Secretary of State for the Home Department  EWHC 3070 (Admin)).
What is the evidence that abuse is widespread and justifies reforms to the process? The government finds the evidence in the judicial statistics, which apparently show that while there has been ‘significant growth’ in the use of JR only a ‘small proportion of cases … stand any reasonable prospect of success’. ‘In the majority of applications considered by the courts, permission to bring Judicial Review proceedings is refused. Of the 7,600 applications for permission considered by the Court in 2011, only around one in six (or 1,200) was granted. Of the applications which were granted permission, 300 were granted following an oral renewal (out of around 2,000 renewed applications that year)’ (para 31). The inference is that five sixths of claimants abuse the process by knowingly bringing unmeritorious claims. The government draws this inference by looking at the 7,600 claims of all categories that were considered by a judge for permission, of which ‘only’ 1,200 were granted permission. However, as explained below, the official statistics provide a very dubious basis for drawing the inference that only one sixth of claims for JR have merit.
The official statistics provide a snapshot of the caseload in a year and the number of permission decisions made in the year. The decisions made in any one year do not necessarily relate to the claims brought in that year, but may relate to claims brought in a previous year. Additionally, the Court periodically adopts a strategy of clearing backlogs in certain types of case, which can artificially inflate the statistics regarding numbers of decisions. So, for example, in 2001 the Official Statistics showed there to be more permission decisions recorded than there were claims filed.
Thus we cannot use the official statistics as anything more than a very rough and ready way of determining how claims in particular years fare. For an analysis and explanation of trends in the permission grant and failure rates since the mid 1990s see, Bondy and Sunkin, ‘Accessing Judicial Review (2008) Public Law 647.
The official statistics have a number of other limitations as well.
For instance, the government’s analysis leaves out of the equation the 3,600 JRs that seem to have disappeared between being issued and the permission stage (11,200 less 7,600). The disappeared cases are significant and we simply can’t tell from the official figures what happened in relation to these claims, which appear to make up 32 per cent of the 11,200 issued claims.
As it happens this proportion is consistent with the research Dynamics of Judicial Review findings showing that 34 per cent of JR claims are withdrawn after being issued but prior to being considered by a judge for permission. We found that they are usually withdrawn following a settlement in favour of the claimant. That figure is worth holding on to and we shall return to it in a moment.
The official statistics are divided into three categories: immigration/asylum, criminal and other i.e. civil JRs excluding immigration/asylum. As neither immigration/asylum, nor criminal JRs are at issue here, let’s examine the figures for civil JRs which include all other categories such as housing, education, community care, planning etc. The statistics tell us that in 2011 2,036 civil JRs cases were considered for permission of which 1,509 (74%) were refused and 527 (26%) were granted. This is a permission success rate of more than one in four and not one in six as presented in the consultation document
Now let’s go back to the cases that settled prior to permission. Success and failure cannot be measured solely by examining permission decisions. We have just mentioned that over a third of claims are likely to be settled prior to permission, usually in the claimant’s favour. When this is factored into an assessment of outcomes, the actual success rate of claims becomes significantly higher than one in four. In short, the one in six success rate at the permission stage is misleading and significantly exaggerates the actual failure rate of claims.
In fact, the success rate may be significantly higher. When we look, for instance, at the success rate of permission claims that are dealt with at oral hearings in open court as opposed to by a judge on the papers alone, we find that over twice as many oral claims are granted permission as are paper claims. In our sample of cases for the Dynamics of Judicial Review report, the success rate of oral only permissions was 62 per cent.
Is there any other evidence of abuse? When we examined the comments made by judges refusing permission we found that it was relatively unusual for judges to state that claims had been refused because they were hopeless or totally without merit. In our research we found, for instance, that in 104 civil claims (excluding immigration and asylum) where judges gave observations, only 12 cases were said to be hopeless or without merit or perverse. One such case was successfully renewed by a litigant in person and went on to succeed at the final hearing (Leyton v Wigan CC (Co 7428)).
In short, our analysis suggests that the government is overestimating the failure rate at the permission stage, especially in civil JRs, and is overestimating the degree to which the system is being abused by claims that lack merit. Where abuse occurs it is strongly arguable that effective mechanisms already exist and that general reforms restricting the use of JR is unnecessary.
A key element in the government’s strategy is the proposed reduction in the time limit for seeking JR, at least in some claims. It is easy to see why reducing time limits might appear an attractive and superficially easy option for the government. The current obligation to bring a claim ‘promptly and in any case within three months’ is already very tight, especially when contrasted with general limitation periods. However, it is longer than the six weeks limit for bringing statutory appeals in planning cases. The real question for the moment is whether shortening the JR limitation period will help or hinder the government’s aim of eliminating abuse and saving cost and time.
One of the lessons of our research is that procedural changes can affect the dynamics of litigation in ways that are not always obvious or predictable. Another is that the judicial review process needs to be understood holistically and changes to one aspect will affect other elements of the process. There are, for instance, sound reasons for fearing that shortening the time period for claims may both increase the proportion of weak claims and impose additional costs on public authorities. We have already noted that over a third of claims filed settle prior to permission, usually in the claimant’s favour. Our research shows that this usually occurs after the defendant concedes the substance of the claim having been prompted to reassess the claim once the proceedings are commenced and an Acknowledgment of Service has to be filed. At this point lawyers often become more centrally engaged in the matter. Many solicitors acting for claimants and for defendants told us that had more time been available for negotiation their case may have been settled out of court, but proceedings had to be issued in order to meet the time limit. Shorter time limits are likely to increase pressure on claimants to file and reduce space for settlement. As well as potentially increasing the possibility of weak and premature claims, shortened time limits may also increase the burden on public authorities who will be obliged to respond to more premature claims. This would not be in the interests of either claimants or public authorities. It would certainly be unfortunate if reforms here were to reduce opportunity for informed settlement and there is a strong argument that more attention should be given for increasing incentives upon public authorities to look again at disputed decisions with a view to securing settlement out of court.
So to conclude
Other claims made in the consultation may be disputed in the light of the evidence, including the implication that the overall impact of JR on public decision making is negative.
On this, the existing evidence is very patchy. The issue was recently considered by the Law Commission (see Administrative Redress: Public Bodies and the Citizen, May 2010, HC 6, esp Part 1V). While some work suggests that the threat of legal challenge may lead to defensive behaviour, there is also evidence that judicial review litigation may act as a driver to improve public services and the quality of government. See especially, L. Platt, M Sunkin and K Calvo, ‘Judicial Review as an incentive to change in local authorities in England and Wales’ (2010) Journal of Public Administration Research and Theory 20:i243-i260 .
Here, we have high-lighted some of the weaknesses in the government’s evidence base in relation to the scale of litigation and abuse. Reforming the process is a major step that may have unintended consequences that could increase burdens on public bodies and the courts without achieving the ends that the government hopes. Restrictions on access may also have a disproportionate adverse affect on claimants (often the most vulnerable) with genuine legal disputes with public bodies especially in relation to public service provision. The weakness of the evidence base for these reforms is startling and worrying and we can only hope that the government will take the consultation responses seriously and think again before introducing reforms that will undermine the integrity of the JR process without achieving the government’s desired aims.
Varda Bondy is Director of Research, Public Law Project
Maurice Sunkin is Professor of Public Law and Socio Legal Studies, University of Essex
Suggested citation: V. Bondy and M. Sunkin, ‘Judicial Review Reform: Who is afraid of judicial review? Debunking the myths of growth and abuse.’ UK Const. L. Blog (10th January 2013) (available at http://ukconstitutionallaw.org)