Reforming JR

Richard Clayton QC figures out the statistics behind the growth in judicial review cases and impact of the government’s reform agenda

The importance that judges attach to judicial review is often voiced. As Lord Dyson said in R v (Cart) v Upper Tribunal [2012] 1 AC 663 [122]: ‘There is no principle more basic to our system of law than the maintenance of rule of law itself and the constitutional protection afforded by judicial review.’ By contrast, a very different view is expressed by central government, a key player in judicial review litigation. Regrettably, however, there is very little hard evidence which seems to justify the government’s reform agenda.

When launching the first package of reform proposals which restricted judicial review in 2013, the Minister of Justice Chris Grayling was quoted by the media as saying:

‘Of course, the judicial review system is an important way to right wrongs, but it is not a promotional tool for countless Left-wing campaigners. So that is why we are publishing our proposals for change. We will protect the parts of judicial review that are essential to justice, but stop the abuse. Britain cannot afford to allow a culture of Left-wing-dominated, single-issue activism to hold back our country from investing in infrastructure and new sources of energy and from bringing down the cost of our welfare state. We need to make decisions quicker and respond to issues more quickly in what is a true global race.’

The drivers for recent government reforms, in fact, involve several assumptions, which are open to question. For example, Professor Maurice Sunkin of the University of Essex claimed in his [May 2017 lecture], Gaining an Empirically Based Understanding of the Value of Judicial Review: is Judicial Review Worth the Fuss and Bother?, that the massive growth in judicial review impedes good administration and is driven by claimants bringing weak claims, and that litigation is about process and does not alter outcomes.

Statistics

The reality of how the Administrative Court works, therefore, repays careful study. Applications for judicial review were rare beasts in the 1980s and reached 2,000 a year in 1990. By 2016, there were 2,479 immigration judicial reviews and 1,605 non-immigration civil cases. Now, however, the number of non-immigration cases is in decline (although it is difficult to identify the reasons for it). In any case, the number of non-immigration cases is actually a tiny proportion of the total number of decisions made by public bodies. Research suggests that permission is granted in about 25% of cases.

In 2015, the Ministry of Justice announced that the proportion of all cases lodged and found in favour of the claimant at a final hearing had reduced to 1% in 2013 and had remained the same in 2014. But a figure based on the total number of cases issued is not a very useful starting point for working out the success rate of judicial review cases.

According to Tom Hickman and Sunkin’s study Success in Judicial Review: the Current Position (UK Const L Blog ,19 March 2014), many judicial review applications settle – either before or after permission – normally on grounds which are satisfactory from the claimant’s point of view. Of the 4062 cases lodged in 2014, the success rate for claimants at trial was actually 36%. Of 144 final hearings examined, 52 (36%) were won; and another seven (2.7%) are recorded as having resulted in an outcome which is neither a win nor a loss.

Unfortunately, there is very little empirical evidence concerning what judicial review applications actually achieve for claimants. But one of the few studies in this field, The Value and Effect of Judicial Review, carried out by Varda Bondy, Lucinda Platt and Sunkin (Public Law Project, 2015) concluded that claimants acquire a number of benefits from bringing judicial review applications like favourable settlements or achieving a positive outcome, after a decision is quashed. It also seems that judicial review improves the quality of public services, as suggested by Sunkin et al in Mapping the use of Judicial Review to Challenge Local Authorities in England and Wales (2007) Public Law, 545, 550. The rationale for the recent reforms, therefore, needs to be closely scrutinised.

Prohibiting payment

One particularly controversial change was the Conservative and Liberal Democrat coalition government’s proposal to prohibit lawyers receiving payment in legal aid cases where permission for judicial review is refused. The government argued that too many cases go forward because the legal aid for judicial review is abused. However, the consultation that preceded the legislation was overwhelmingly opposed to this idea and the government failed to adduce any evidence for its views. Many pointed out that the proposals, inevitably, created uncertainty for solicitors working on legal aid – which had detrimental effects on access to justice, and on the rule of law itself (eg the Bingham Centre Rule of Law’s Response to the Ministry of Justice’s [consultation] Transforming Legal Aid: Next Steps). In R (Ben Hoare Bell) v Lord Chancellor [2015] 1 WLR 4175 the Divisional Court decided that these new regulations were unlawful, but the government introduced a new scheme to similar effect, just before the 2015 election.

Anecdotal evidence suggests that the risk of non-payment in judicial review cases has significantly reduced the number of cases brought. Costs in judicial review are very front-loaded: something like 70% of a claimant’s costs are generated up to the permission stage. So, for example, judicial review applications seem to have fallen away because of log jams waiting for a permission decision in the long Administrative Court list at the Royal Courts of Justice, with the result that the circumstances of a case move on and permission is eventually refused. Nevertheless, the government appears to have succeeded in meeting its objective by reducing the number of judicial review claims.

Reversing reforms by litigation

Other government reforms have also been reversed by litigation. The Supreme Court held in the Public Law Project [2016] AC 1531 case that the government had acted unlawfully in seeking to remove residents outside the UK from the scope of legal aid. This year the Court of Appeal decided in R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244 that taking prisoners outside the scope of legal aid resulted in inherent and systematic unfairness in several types of decisions made by the Parole Board. Even so, these court defeats have not diminished the government’s enthusiasm for the reform agenda.

Costs capping and the ‘chilling effect’

In 2006, Maurice Kay LJ argued in his foreword to the Report for the Working Party on Public Interest Litigation that ‘there are public interest cases which merit litigation but which are excluded from the courts for reasons of cost. There are limits to the availability of funding from the Legal Services Commission and, in the area of judicial review, it is difficult to find insurers who will back conditional fee agreements for an affordable premium’. By 2014, the coalition government had formed a contrary view. As a result of the Criminal Justice and Courts Act 2015, it is no longer possible to seek a costs capping order until after permission has been granted. Therefore, a claimant in a heavily contested permission application may be at risk of paying upwards of £10,000 if permission is not granted. The risk of an adverse costs order can operate as a powerful disincentive from bringing a public interest case.

The same difficulty arises in relation to public interest interventions in judicial review proceedings. Until recently, no costs orders would be made against an intervenor in judicial review cases. Lord Phillips stressed in his foreword to To Assist the Court: Third Party Interventions in the Public Interest, a report by Justice published in 2016, ‘in general the courts have welcomed, and the parties have not challenged, the help that interveners can bring. Often they draw on experience, or knowledge, that the individual litigants do not share’. However, under s 87 of the Criminal Justice and Courts Act 2015 it has become mandatory to award costs against an intervener in a number of specified circumstances, save where there are ‘exceptional circumstances’ that make a costs order ‘inappropriate’. Lord Phillips believes that ‘this provision could have a chilling effect’.

Impacting the rule of law

The critical question remains whether and to what extent continuing restrictions on the right of access to the courts in judicial review cases weaken our system for protecting the rule of law. The jury is still out, but experience to date has not been reassuring.

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Richard Clayton QC

Richard is a judicial review practitioner at 7BR.