Charities and internal investigations
A commonly held view is that there has been an explosion of judicial review cases (with an accompanying welcome increase in the holding of public bodies to account or, depending on one’s viewpoint, an unwelcome extension of the reach of the Administrative Court and an increasing burden on public bodies) over the last few years . At first blush this view is supported by the evidence in the recently published “Judicial and Court Statistics 2011”. But to get the true picture the figures need to be unpicked.
In headline terms there has been a dramatic increase. In 2011 11,200 applications for permission were received. A decade earlier, in 2001, there were only 4,732. However the significant increase has been concentrated in only one type of case. The statistics divide the applications received into three categories: immigration/asylum; criminal; and, “other”. The growth has been in the immigration/asylum category, which has risen from half of the total number of applications in 2001 to over three quarters in 2011. What does this tell us? Simply that, outside the immigration/asylum arena, there has been no explosion of judicial review cases at all but rather a very modest increase – during the decade the total figures for “other” have ranged between a low of 1,685 applications in 2004 to a high of 2,228 in 2006 and with a 2011 figure of 2,213.
This divide can also be seen in the numbers of cases in which permission to bring JR proceedings has been granted or refused. In 2011 there were a total of 1220 grants of permission and 6391 refusals. That refusal rate (which itself is surprisingly high since the test being applied is simply whether a claim is ‘arguable’ and meriting further investigation – the purpose is to weed out claims that are hopeless, frivolous or vexatious) is gradually increasing: in 2007 permission was refused in around 79% of cases considered, in 2011 in around 84%. As between the different types of cases, the immigration/asylum permission refusal rate was around 89% and the “other” cases rate 75%. What might be the explanation? In terms of the difference between the refusal rates, one suspects that it may simply be that some weak asylum challenges are brought as a last and fairly desperate roll of the dice before removal from the UK. On top of that it seems pretty clear that the judges determining permission applications take a rigorous view of what constitutes ‘arguable’.
Slightly surprisingly, this pattern is not mirrored in the outcomes of cases that go to trial. In 2011, 45% of immigration/asylum cases judicial review claims were allowed – but that was the position in only 40% of the “other” cases. The overall success rate for 2011, with claimants winning in a total of 44% of trials, reflects the general historical trend. Only once in the past 5 years, in 2007, have there been more claims allowed than dismissed; and even then it was only by 50.5% to 49.5%. The balance between cases that win at trial and those that lose does tend to suggest that in practice the system is working properly in the sense that it would appear that it is the finely balanced cases that are being tried.
Where the system may not be working well is in relation to the number of cases waiting to be tried. Judicial review claims must be brought “promptly” and in any event within 3 months of the decision being challenged – and the underlying aim of this limitation period is to promote certainty and avoid delays in administrative action. Although the published statistics do not give information on how long it takes for a judicial review case to come on for trial once issued or once permission has been granted, one crude measure – the gap between the number of case in which permission has been granted in a year and the number of trials – does give cause for concern. In 2011 there were a total of 387 final hearings as opposed to 1220 grants of permission. The number of final hearings was significantly down from the previous 2 years (450 and 474) but the number of grants of permission was significantly up (1,100 and 862). All of which points to there being a rapidly growing and worrying number of cases waiting to be tried.
Partner and Head of Department
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’
The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
According to the most recent data, two million people in London are living with illegal levels of air pollution. Nitrogen dioxide is one of the main pollutants and road transport is estimated to be responsible for 50% of total emissions.
We have seen in recent months various and different attempts by those who want to change the course of government policy on the issue of climate change.
The High Court judgment of R (Johnson, Woods, Barrett and Stewart) v SSWP EWHC 23 (Admin) involved a judicial review challenge to the method of calculating universal credit. The claimants successfully demonstrated that the DWP’s method of calculation was an incorrect interpretation of the Universal Credit Regulations 2013 (the Regulations) as it failed to account for circumstances where workers’ pay dates do not converge with the fixed assessment periods under the universal credit scheme.
In its consultation “Extending Fixed Recoverable Costs in Civil Cases: Implementing Sir Rupert Jackson’s proposals”, which was launched on 28 March 2019, the Ministry of Justice has failed to take forward a proposal that could have had a significant impact on the ability of individuals to hold public bodies to account through judicial review proceedings.
In the case of Lazarov v Bulgaria the High Court found itself in some legal difficulty as it sought to deal with an appeal against an extradition judgment from Westminster Magistrates’ Court that was replete with mistakes.
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