Judicial Review reform and the mystery of the missing evidence

17 January 2013 by Adam Wagner

The Government’s consultation on Judicial Review ends on Thursday 24 January – please forward your response to the consultation by email  and I will include it in a roundup.

It is fashionable at the moment to speak about ‘evidence-based’ policy. The concept has been imported from the sciences by advocates such as Dr Ben Goldacre. In short, policies should be based on empirical evidence, statistics and perhaps even randomised trials. Very sensible. So sensible, you would hope that Government has been doing it anyway.

Which brings me to the planned reform of Judicial Review, the process by which legislative and executive decisions are reviewed by judges to make sure they are lawful. The Government’s ideas are fairly significant, although not quite as major as defeating Hitler, as the Prime Minister intimated they were when he announced them. I have already looked at the proposals in some detail – see also this excellent post. I wanted to concentrate here on the broader picture; the ‘mood music’, as it has been described by Mark Elliott.

The Government’s case is that there has been a huge rise in Judicial Review claims since the 1970s, and notably in the last decade, mainly as a result of a massive rise in challenges to immigration and asylum decisions. Following on from this, there are three fundamental assumptions which underly the proposals. Are they evidence-based?

First, the assumption the threat of Judicial Review “has an unduly negative effect on decision makers“. This is an absolutely key plank of argument. What is the evidence? It seems that the sum total is at paragraph 35:

There is some concern that the fear of Judicial Review is leading public authorities to be overly cautious in the way they make decisions, making them too concerned about minimising, or eliminating, the risk of a legal challenge.

That’s it. No footnote to empirical research. Nothing else. Just “some concern”. And it isn’t as if no empirical research has been done on the effect of Judicial Review on decision makers. As Varda Bondy and Maurice Sunkin point out, there has been recent empirical research which 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“. None of it is cited. For an example of how it might have looked, see from page 142 of this 2008 Law Commission consultation paper.

Secondly, that Judicial Review has “developed far beyond the original intentions of this remedy.” That sounds bad. But what is the basis of the assumption? Simply this: “There are concerns” (paragraph 26).No mention of what the “original intentions” of the remedy were, the history of Judicial Review, what exactly has changed and by how much. For a proper treatment of this subject, see this study and particular page 3 onwards on the history of Judicial Review. Don’t expect to find any such information in the consultation document.

Thirdly, that Judicial Review negatively affects economic growth. Indeed, this was the Prime Minister’s focus when he announced the reforms to business leaders, telling them “we need to throw everything we’ve got at winning in this global race“. The Government is worried about “costs incurred as a result of the delays to the services affected” as delay “can affect infrastructure and other projects crucial to economic growth, as well as other private and voluntary sector organisations.”

What evidence? None. No studies of individual cases where Judicial Review has affected infrastructure. No reference to other studies which have considered the issue, such as Bondy and Sunkin’s research, which found that only 30 planning JRs (one of the few categories of JR which affect infrastructure) went to a final hearing in 2011, a grand total of six against central Government.

Why no reference to research? There are two possibilities. Either the proposals document was sloppily constructed, and academic research simply wasn’t considered. Or, perhaps because it would have been unhelpful, contradicting the main assumptions with no other research available to rebut the unhelpful conclusions. It seems to me that the latter option must be the more likely.

What is really quite stunning about the Government’s lengthy (38-page) consultation document is that there is no reference to empirical research at all. The consultation paper laments that “there is only limited information on how Judicial Review cases progress through the courts” (34). And yet the independent academics and organisations who have worked hard, presumably at some public expense, to make sense of that data in recent years are simply ignored.

I could go on. Paragraphs 64 and 79 rely upon “anecdotal evidence” to support key proposals, without even relating the anecdotes. Anecdotal evidence to found, entirely, proposals which will significantly affect the rights of individuals to challenge decisions made about them by the state. Not good enough.

So to return to my initial question, are the proposals evidence based? No. There is some evidence in there, in the form of statistics, anecdotes and bare assertions. But certainly not enough to justify fairly major changes to the Judicial Review system. The simple fact that recent, independent studies have been ignored is sufficient to fatally undermine the Government’s rationale. The Government is of course entitled to disagree with the methodology or conclusions of research, but not to ignore it completely.

As I said in my last post on the topic, some of the changes which have been proposed may be sensible, such as the limitation on appeal rights. But it is difficult to take them seriously when the underlying assumptions are so poorly thought through.

I will end with this point. It is safe to say that nobody wants an inefficient, ineffective system of Judicial Review which holds back decision makers from running public authorities. Or one which serves the interests of greedy lawyers more than it does the individuals and groups who are supposed to be its beneficiaries. But in order to change the system effectively, those changes needed to be smart and focussed. Not half-baked and vague. And that means taking the evidence seriously, something which these proposals have singularly failed to do.

You can respond to the proposals by way of an online survey here.

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• Quicker, costlier and less appealing: plans for Judicial Review reform revealed
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