UK Constitutional Law Association

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Varda Bondy and Maurice Sunkin: How Many JRs are too many? An evidence based response to ‘Judicial Review: Proposals for Further Reform’

Triggered by the government’s consultation paper Judicial Review Proposals for Reforms published in December 2012, much has been written about the volume of judicial review challenges in the Administrative Court.  As is well known, the government has largely justified its programme of reforms to judicial review in terms of the need to restrict access to JR in order to respond to the massive year on year growth in the use of judicial review, and to cut down abuse of the system thereby saving public funds and reducing delays caused by litigation.

We, and many others, have shown the government’s fears to be exaggerated either because the evidence relied upon is inadequate or because it has been misinterpreted, or perhaps a combination of both. We provided our evidence and analysis in an article published on this blog in January 2013. That paper, and the research upon which it is based, have been cited extensively by organisations and various stakeholders in their responses to the first consultation. It is also acknowledged by the government who in the current consultation note that: ‘Those [respondents] who disagreed [with certain of the proposals] […] pointed to the research undertaken by Bondy and Sunkin, which suggested that the Government was over-estimating the failure rate for applications for permission. …’ (para 69).

One of the puzzles of the reform saga is that the government appears to know that the figures do not justify its concerns in relation to growth: indeed, in the current consultation Judicial Review: Proposals for further reforms  which ends on 1 November 2013,  the government  cite official statistics which show that since 2007 the volume of non-immigration/asylum JRs issued has remained fairly stable at just over 2,000 per annum mark. (para. 10) Yet having given these figures the government repeat the growth mantra, saying that:

‘…the use of JR expanded massively in recent years and it is open to abuse’ (Foreword p.3)

‘…there has been significant growth in the use of judicial review, and …this is sometimes used as a delaying tactic in cases which have little prospect of success’ (para 5 p.5).

And even:  ‘As the data illustrates, there is a large and growing number of judicial review applications’.

It is as if growth in the use of judicial review is a mantra which cannot be dispensed with.

Here we do not intend to repeat what we have already said. Rather in this paper we shall unpack other aspects relevant to assertions of unchecked growth and question the basis for the reforms proposed in the current consultation, in particular those relating to standing and Protective Costs Orders.  Before turning to these we look at what our research tells us about the parties in JRs and the nature of challenges. The analysis presented here is based on data collected in the course of an empirical research study conducted jointly by the Public Law Project and the University of Essex, funded by the Nuffield Foundation on the effects and value of judicial review. The full project report is to be published.

Our database contains extensive details on 502 JR final hearing decisions heard in a 20 month period between July 2010 and February 2012. All the cases are civil JRs, including immigration/asylum cases.  In addition, we received completed questionnaires from claimant solicitors in respect of 198 cases, from defendant solicitors in respect of 53 cases, and we interviewed solicitors and barristers in relation to 56 cases.

Who are the claimants in JRs?

In our sample (which it is to be stressed covers cases at final hearing, not cases issued), approximately three quarters (77 per cent, 388 cases) were brought by individuals. The next largest group of claimants consists of corporations/legal persons, who with 76 cases represent 15 per cent of the sample. A variety of interest groups and charities, were the claimants in 16 cases, comprising three per cent of the sample. This category is specifically targeted in the current consultation (see para 78 of the consultation and our breakdown below).  The remaining claimants were:  12 local authorities, four other public authorities bringing one case each, (NHS trust, a school, a chief constable, and a commissioner of police), and one case brought by the SSHD (on whether sensitive security service information can be considered by the coroner in closed session)

Who are the defendants in JRs?

Unsurprisingly over half the cases in our sample of 502, (57 per cent, 284 cases) were against central government. As we will see below these cases were spread (unevenly) among 26 government departments.

The next largest group of defendants, again unsurprisingly, consisted of  local authorities, who were the defendants in 117 cases. Only 20 local authorities experienced more than one JR final hearing over the 20 month period covered by our sample.

The remaining challenges involved a wide range of bodies, including adjudicatory bodies, prisons, central government agencies, police, health authorities,  regulators, professional bodies , Welsh Ministers and schools.

A breakdown of the JR challenges against the Government:

As we’ve seen above, in the 20 month period of our research, of 502 JRs, 284 hearings were challenges brought against central government departments. Of these, 137 involved immigration and asylum. We can put these to one side bearing in mind that immigration cases are being transferred to the tribunal system and those transferred will be untouched by the current reforms.  In passing we may note that by the end of 2014 the number of JRs in the Administrative Court will be substantially reduced – the number of JRs involving the SSHD in that court are likely to be halved.

Categories of cases against central government as a whole:

The remaining 147 central government challenges involved 28 different case categories, such as adjudication, cemeteries, customs/excise,  elections, environment, inquests , mental health, police and tax, to name but a few.

Breakdown of challenges by government department:

The most challenged departments (comprising 53 per cent of all challenges involving central government) were the SSHD (40) and the SSJ (38).

The remaining 69 JR hearings over the 20 months involved another 24 government departments, most of which had no more than one or two JRs during the sample period.

In other words, during our sample period central government as a whole had to respond on average to 7.3 (non- immigration/asylum) JRs per month. This number was spread across 26 government departments. The SSHD and the SSJ, attracted the largest number of challenges, and each had an average of two final hearings per month. Another 24 government departments shared the burden of the remaining 69 JRs, an average of 0.14 JR final hearings a month.

Bearing in mind the concerns raised by government in relation to the damaging effects of judicial review, these numbers are surprisingly low.

The proposal to restrict the scope of the standing requirements

The Government proposes to ‘to restrict standing so as to prevent claimants without a direct or tangible interest from bringing judicial review proceedings’ (para 81). The proposal does not extend to challenges raising environmental issues which are governed by EU law and the Aarhus Convention (para 81). A twofold rationale is given. The first is to prevent abuse of the process by interest groups who exploit the broad standing rules: ‘… individuals or groups without a direct and tangible interest in the subject matter to which the claim relates, sometimes [seek to use judicial review] for reasons only of publicity or to cause delay.‘ (para 67) The second is to prevent courts dealing with matters ‘which are the proper preserve of Parliament and the elected Government’ (paras. 79-80).

This paper is intended to contribute to discussions by providing evidence drawn from our current research which indicates that broad reform of standing is a disproportionate response given the current ability of the judges to control the caseload and the small number of cases which appear to fall within the category about which the government is concerned.

The proposed restrictions on standing are not justified

The requirement that claimants for judicial review must have a sufficient interest in the matter has been central to the judicial review process since the modern judicial review procedure was introduced in the 1970s. (The Senior Courts Act 1981 section 31(3))  It was introduced following a recommendation of the Law Commission that the older ‘person aggrieved’ test be replaced because the courts had been interpreting that test too narrowly. (Law Comm. Cmnd. 6407 (1976), para 48; Law Comm. Working Paper (no 40) (1971) pp 95-101). The Law Commission strongly felt that a broader and more flexible approach to standing was needed. The Law Commission subsequently recommended that those adversely affected by a decision ‘should normally be given standing as a matter of course’ and that the court should have ‘a broad discretion to allow ‘public interest and group challenges. (Law Comm No 226, Para 5.22.)  The current approach to standing reflects this approach.

The basic purpose of the broad and flexible approach is, in the words of Lord Diplock, to vindicate the rule of law. (R v IRC, ex parte National Federation of Self Employed and Small Businesses Ltd [1982] AC 617, 644E) By opening the doors to cases in which it is shown that government may have abused or exceeded their power the courts can maximise their ability to ensure that public bodies act in accordance with the law. A broad test of standing furthers the rule of law and as such the test can only be narrowed if a compelling justification exists for doing so. No such justification is established in the consultation paper.

The courts are concerned to prevent abuse of the judicial review process and the permission stage already enables the filtering of frivolous claims by ‘meddlers and busybodies’ with no sufficient interest.  An important aspect of the broad approach is that it enables the judge to concentrate on the substance of the matter and the public interest in having it determined, rather than having to spend time and resource on more technical procedural issues. In the case of Evans cited in the consultation document (para 75), for example, the court expressly noted that the claim had been brought ‘in the public interest’ and raised ‘issues of real substance’.

The burden on the courts and on taxpayers is reduced because a broad test of standing may enable groups and representatives to bring claims and eliminate multiple individual challenges. The quality of argument is maximised because groups and public interest litigants are often best placed to mount well informed challenges and are often the most able and focused claimants.

The government posits a number of possible alternatives to the sufficiency of interest test, each intended to ensure that claimants have a direct and tangible link to the matter being challenged.  In the area of public law, a direct and tangible link cannot be defined in terms of legal rights. An attempt to do so would be fundamentally incompatible with our system of public law, which as Lord Justice Sedley has famously observed, is at base about preventing and redressing wrongs rather than protecting rights. (R v Somerset County Council, ex p Dixon [1998] Env LR 111 at 117-121)

Moreover, an attempt to define what is a direct and tangible link to a decision being challenged without using the language of rights or the more flexible and well understood ‘sufficient interest’ test, is to invite a new generation of satellite litigation over what does, or does not, constitute a direct and tangible interest. It would set JR back to the years before the reforms of the 1970s, when public bodies and the courts were struggling to cope with a system bogged down by sterile technical jurisdictional distinctions.

To take just one example from our sample of cases: is an interest in having access to a free library a direct or tangible interest?  Would the answer differ depending on whether the claimant was a regular user of the service or whether the claimant was bringing the claim on behalf of readers generally?  (Green Rowe and Hird Gloucestershire CC & Somerset CC  [2011] EWHC 2687 (Admin))

The statistical evidence does not justify the reforms

In justifying its proposals the government draws on the Administrative Court records for cases lodged between 2007 and 2011, which show that ‘around 50 judicial reviews per year have been identified that appear to have been lodged by NGOs, charities, pressure groups and faith organisations, i.e. by claimants who may not have had a direct interest in the matter at hand.’ (para 78). Significantly, footnote 38 says that the figures are: ‘Based on a manual analysis of case level information. Due to uncertainties in recording and interpretation this analysis is largely illustrative.’ This is an important caveat given that it can be difficult to identify the nature of the claimant’s interest in the matter from court records alone, which in our experience rarely if ever specifically record this information.

Our evidence

We tried to identify cases within our sample which are most likely to fall within the group which concerns the government, namely cases brought by individuals or groups which have no apparent direct tangible interest in the matter.

First, we looked at cases brought by NGOs and interest groups. When we excluded environmental challenges (which are not within the government’s proposed reform) and the EHRC which has statutory power to bring proceedings, we were only able to identify four cases in which it might be said the claimant had no apparent direct and tangible interest. These were as follows:

Children’s Rights Alliance for England v SSJ ([2012] EWHC 8 (Admin)) in which the claimant challenged a decision of the SSJ to refuse to disclose the names of children subjected to unlawful restraint techniques at centres run by the interested parties. This was an access to justice issue intended to enable children to make their own claims.

British Pregnancy Advisory Service v SSH ([2011] EWHC 235 (Admin) which concerned the interpretation of provisions in the Abortion Act 1967.

Child Poverty Action Group v  SSDWP ([2011] EWHC 2616 (Admin)) which was a challenge to reforms to housing benefit scheme.

Medical Justice v SSHD ([2010] EWHC 1925 (Admin)), which was a challenge to the legality of the policy giving less than 72 hours’ notice of deportation.

Only in the Children’s Rights Alliance for England case was standing considered to be an issue and here the discussion concerned the ‘victim’ test in section 7 of the Human Rights Act 1998 rather than the sufficiency of interest test. While it was decided that the organisation was not a victim Foskett J commented that:

Given the serious nature of the issues raised concerning young and vulnerable individuals, it would seem strange that a reputable charity such as the Claimant should not be entitled to come to court and raise the kind of issues raised’ (para 213).

Protective Costs Orders (PCOs)

The government‘s rationale for the need to curtail the grant of PCOs follows the same pattern as that proffered in relation to standing: judges now adopt too liberal an approach, (par 157), which  ‘has tipped the balance too far and now allows PCOs to be used when the claimant is bringing a judicial review for his or her own benefit.‘ (para 158), as well as facilitating  ‘the use of judicial review as a campaign tool with challenges brought by groups which do not have a direct or tangible interest in the claim’ (para 159)

Having looked through all the judgments in our sample and having asked solicitors to tell us in the questionnaires whether a PCO was granted in the case, we came across only seven cases in which a PCO was granted over this 20 month period, namely:

–        Child Poverty Action Group v SSDWP [2011] EWHC 2616 (Admin); Challenge to reforms to Housing Benefit scheme and calculations/limits to housing benefit.

–        ClientEarth v SSEFRA [2011] EWHC 3623 (Admin); Breach of EU environmental law.

–        Garner v Elmbridge [2011] EWHC 86 (Admin); Protection of palace from unsightly development out of keeping with setting.

–        Griffin v LB Newham [2011] EWHC 53 (Admin); Challenge to expansion of London City airport.

–        Medical Justice v SSHD  [2010] EWHC 1925 (Admin) ; Legality of policy of giving less than 72 hours’ notice of deportation.

–        Warley v Wealdon District Council [2011] EWHC 2083 (Admin); Challenge to planning permission to allow floodlights.

–        Public Interest Lawyers v LSC [2010] EWHC 3259 (Admin); an application for a PCO  in relation to the award of contracts to provide publicly funded legal services for public law work and mental health law.

Of these seven cases, four (Griffin, Warley, Garner and ClientEarth) were environmental challenges, which are not affected by the proposed reforms (para 156). This leaves only three PCOs out of 502 cases over a 20 months period.

Conclusions:

In our view, the current evidence does not justify the government’s concerns regarding the adverse impacts of judicial review

In relation to standing, the following observations may be made. First, in our 20 month period there are very few cases which clearly fall within the category which appears to most concern the government, namely cases brought by groups or individuals in which the claimant clearly has no direct and tangible interest and which may be loosely described as ‘political’ in character. Secondly, this low number may be because other claims have been filtered out at the permission stage. Thirdly, there were few, if any, instances in which the sufficiency of interest (as opposed to the ‘victim’ requirement) was a live issue at the hearing stage – in other words the defendant public bodies appeared willing to accept the claimants’ standing. Fourthly, in many of the cases the court expressly acknowledged the public importance of having the matter determined.

The findings confirm our view that it is not necessary to introduce a new and narrower test of standing. The current procedures are well suited to eliminating abuse. A narrower test of standing will restrict the court’s ability to deal with issues of public importance and undermine the rule of law. A narrower test may also give rise to difficult and time consuming definitional problems for litigants (both claimants and defendants) over what constitutes a direct and tangible interest. If this occurs it will be a significant retrograde step in our law that is likely to increase costs and delays and undermine the flexibility of the judicial review system. No case has been made which justifies restricting the current approach to standing. Our conclusions are similar in relation to the proposed reforms in respect of Protective Costs Orders.

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, ‘How Many JRs are too many? An evidence based response to ‘Judicial Review: Proposals for Further Reform’’ UK Const. L. Blog (26th October 2013) (available at http://ukconstitutionallaw.org)

2 comments on “Varda Bondy and Maurice Sunkin: How Many JRs are too many? An evidence based response to ‘Judicial Review: Proposals for Further Reform’

  1. Pingback: The sector should fight for the right to judicial review | Third Sector blog | Third Sector blogs

  2. Pingback: Declarations, quashing orders and declaratory judgments: The Hawke case and section 84 of the Criminal Justice and Courts Act 2015 | Public Law for Everyone

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