Why judicial review is valuable to society’s most vulnerable

Keeping government to account. Judge via Andrey_Popov/www.shutterstock.com

Nobody is above the law, not even governments, local authorities and other public bodies. They can be held accountable for the legality of their actions through a process known as judicial review. It ensures that they comply with the law and act fairly when no other form of legal redress is available. The process is often used by the most vulnerable to challenge decisions that may have significant impacts on their lives, such as removal of care services or continued detention.

Findings from our new research show that judicial review cases which go to a final hearing have a nearly 50% chance of success. Even though judicial review is concerned with the process of decision-making – whether it was legal or not, rather than with getting compensation or a particular service – 80% of successful claimants obtained some direct, tangible benefit from their claim. In addition, even where the claimant was not successful, they often achieved some benefit.

Judicial review has received much critical attention from the UK government which has sought to curtail its use, and limit what government regards as being its undesirable consequences.

The Ministry of Justice, and the previous Lord Chancellor, Chris Grayling have argued in consultation documents as well as a contentious 2013 newspaper article that judicial review tends to be an expensive and time-consuming detour that rarely alters actual decisions. They also argued that it is often used for political purposes, and is burdensome on public authorities, making it more difficult for them to deliver public services efficiently.

Our research questions these arguments.

Not a succession of weak claims

We drew on a collated data set of 502 judicial decisions in England and Wales over a 20 month period between July 2010 and February 2012. We also used a survey of solicitors, covering about half of these cases, interviews with claimant and defendant solicitors and other key informants, and case studies of key judgements.

We found a high success rate for challenges: in 44% of judicial review cases that go to a final hearing claimants were successful. When taking into account appeals, the success rate rose to 47%. This suggests that judicial review is not dominated by weak claims with no merit.

Tangible outcomes

In challenges to local authorities, outcomes for the claimants included the continuation of statutory care including the purchase of needed equipment, a fresh care plan with appropriate placement and an increased budget, and the retention of an appropriate level of respite care.

In challenges to the Home Office, outcomes included entitlement to police injury pension, a grant of humanitarian protection and social services support, the release from detention pending deportation and the grant of damages. While outcomes from challenges to the Ministry of Justice included claimants getting access to education in prison, and release from prison following a fresh parole review.

One example of a beneficial outcome stemming from an unsuccessful community care case involved the public body nevertheless reconsidering its policy to reduce respite care for disabled people. The claimant solicitor reported that:

None of the clients who remained at home were reassessed, so the level of respite care remained as it was … [the council] seem to have accepted that this [their previous decision to reduce respite care] was the wrong approach…

When inspecting who claimants were, we found that, contrary to the claims of the recent Ministry of Justice consultation documents, only 3% of cases had been brought by what might be considered interest groups, with 77% brought by individuals and the remainder by corporations or by public authorities against central government.

Over half of all cases (51%) were brought against central government, but with the exception of the Home Office (where the cases largely concerned immigration and asylum) and the Ministry of Justice itself, no department attracted more than nine cases over the 20-month period. This indicates that no department or public body is subject to a continuous stream of cases as suggested by the former Lord Chancellor.

Pushing forward improvements

We also spoke to public bodies about the burden judicial review hearings placed on them. As might be expected, we were told that judicial review litigation absorbs substantial resources to defend, even where a case has no merit. Yet lawyers representing public bodies also recognised the value of challenges to them, such as the local authority lawyer who said that:

The standards of consultations have gone up tremendously in the last ten years, partly due to legal challenges, plus greater guidance which leads to a better process and better decisions.

Whether judicial review drives improvements in the quality of public decision-making largely depends on the willingness and ability of public bodies to learn from their experience of the process.

As our previous research has shown, this can be difficult, but, in line with earlier findings we found a number of instances of judicial review leading public bodies to review and improve their systems and approaches.

Overall, our findings reinforce the importance of access to judicial review and show that it can provide effective redress and tangible benefits for often vulnerable claimants. It cannot be assumed to be merely an expensive and time-consuming detour to arrive at a known and predictable outcome.