According to Cameron, there is a need to restrict the right to judicial review to ensure the country’s economic competitiveness. As he put it, judicial review should, therefore, cost more, have shorter deadlines, and fewer rights of appeal. This is so that “people think twice about time wasting” . As the MoJ put it:
The number of [JR] applications has rocketed in the past three decades, from 160 in 1974 to 11,200 last year but the proportion of successful applications is very low. In 2011 only one in six applications determined were granted permission to be heard.
Cameron also had a pop at Equality Impact Assessments calling them nothing more than box-ticking.
There has been some fantastic tweeting and blogging and, dare I say it, journalism on the subject. Adam Wagner, on the UKHRB, has effectively dismantled the shaky foundations of Cameron/MoJ rhetoric. Writing in The Guardian, Jeffrey Jowell does, well, he does what he does best – a critique from a strong conception of the rule of law. And, in a brilliant intervention, Louise Restell notes that actually 95% of JRs are non-commercial (so what the hell was Cameron doing by linking them together other than for the sake of his audience [the CBI]) and tweeted a fantastic graphic which demonstrated that, in fact, practically all the rise in use of JR is due to asylum and immigration appeals.
Let me offer a perspective of a mundane housing academic. I don’t expect my NL colleagues will agree with my comments on JR, but here goes anyway.
Before I get to JR, though, I suspect we will all agree that the comments about EIAs are ill-advised. I think that part of the problem with them is that they have become self-serving to policy-makers – in this sense, they are box-ticking. They are not rational, scientific, objective measures of the impact; rather, they convey limited measures, with seemingly wide variations and margins for error in the numbers of persons to be affected (as we have previously commented). Yet, what they really do, and do wonderfully well, is (a) at least require governments to give some thought to the implications of a policy change on its impact on equalities – that seems like an obvious thing to say, but consider (for example) the inadequate thought given before their invention and the disproportionate impacts that some policies have had on already marginalised groups; and conversely (b) it is their very inadequacy which demonstrates how far we have to go to maintain and promote equalities, particularly in light of section 149 – indeed, how can the government get rid of EIAs without also repealing that section?
So, now JR. I’m not going to repeat what others have said and tweeted. From a housing perspective, we know all about the appalling bad use of statistics about JR. Puhlhofer is a case in point – any person with a vague interest in housing law will have Lord Brightman’s words ringing in their heads, “My Lords, I am trouble at the prolific use of judicial review” in homelessness cases – used to justify a much more severe approach to granting permission and the grounds of challenge. As Maurice Sunkin pointed out, however, JR was not more used in homelessness cases than others at the time of Puhlhofer and, in any event, most cases settled at the door of the court (Sunkin’s more recent work on JR is also worth looking at, particularly his research on rates of settlement of JRs).
Actually, I want to make a different point. Cameron clearly is asking the wrong question and coming up with the wrong conclusions. My question (as with other administrative justice academics) is, how can we best ensure that decisions are made more accurately and with proper procedures (which facilitate accuracy) in the first place? As others have demonstrated, the impact of judicial review is dependent on the openness of the organisation to challenge, as well as whether the organisation is aware of the challenge in the first place. I recommend, in this context, Simon Halliday’s short book Judicial review and Compliance with Administrative Law or, if you can’t stomach that, his short paper in Public Law in (around 2000). His was a study of three homeless persons units which had been the subject of a volume of JRs. His findings are revealing, partly because of their counter-intuitive nature – the impact of JR can be zero through to being productive of institutional discrimination.
My sense is that, rather than focus on decisions, public authorities tend to try to fire-proof their decisions and approaches (most of the time), so that a JR itself or county court appeal can be made more difficult (indeed, Shirley Porter instructed lawyers with the purpose of fireproofing the Westminster council house sales policy). The audience for a decision-letter seems now rarely to be the household about which the decision is made and which affects their lives in significant ways, but their lawyer. Accuracy and procedural fairness are not best served by a process which has come to be designed in the shadow of the law and it really does not help that household much either.
But, if we are serious about getting the decision right in the first place, then we should be open to challenge; we should make it easier to challenge decisions, not harder; we should use a review or appeals process to reflect on our current procedures and identify training/other needs. That is what a good administrative justice system is about – it’s what the MoJ were telling us in the early 2000s (remember “proportionate dispute resolution” and the Law Commission’s take on that?). In theory, lawyers aren’t really a necessary part of that feedback loop, assuming the openness of the welfare or other bureaucracy. My hypothesis from Louise Restell’s data is this: assuming a quasi-judicial administrative review process within the organisation, immigration and asylum decision-making is made in the shadow of the law, but with a closed mind both/either to the law itself and/or feedback loops within the organisation to improve initial decision-making – it is street-level decision-making in which the internal culture does not support the goals and value/s of administrative justice. This is what Simon Halliday refers to as a system which may in part lack legal conscientiousness; or just a very poor decision-making culture. If that is right, a culture change within the organisation is required; and Cameron’s comments are a reflection on the inadequacies of the bureaucracies over which the Coalition government is presiding.
I discount from this analysis one particular cause which one might infer from the MoJ’s reference to “ill-conceived cases” – it depends what you mean by “ill-conceived” of course – that it is the fault of those pesky lawyers. Clearly, there are some unmeritorious claims brought (and we blogged about the judicial response to one recently), but I doubt there are many lawyers who bring a claim which they know at the outset will fail – professional reputation and a keen eye on the merits for public funding are significant factors in any decision. Many do fail in any event, so that doesn’t really help the MoJ’s cause (as Adam Wagner and others point out). And success rates, when the law is stacked against you (particularly in housing and homelessness cases), are not a good indicator of anything frankly (this is where I depart from strong rule of law theorists).
How does housing and homelessness fare as a result? Having seen a paper written by my old muckers, I’d say actually not as bad as we might think. First, if you compare the use of the old JR with the internal review system in homelessness cases, the use of the latter looks to be exponentially greater (although my personal bugbear is its lack of use hitherto in allocations decision-making). Second, the internal review system does seem to be used in some places as a feedback loop. Third, the impact of internal review does seem at least in some organisations to be much greater than JR (although this must be treated with caution as one is not comparing like with like etc). Actually, there are different issues which arise – might the opportunity for an internal review be used as a lazy alternative for proper initial decision-making? why do some areas have proportionately more reviews than others (even when one is comparing like with like)? what is the success rate and how can we explain differences?
Here, it seems to me, is where we mainly need lawyers and/or Ombudsmen, not just to counter the odd bad apple (an important element of any challenge) but also to facilitate systemic change. Adversarialism does not, however, breed openness and transparency. And the problem is that we (lawyers) only see individual cases and m’learned friends only see the bad ones; only rarely can we recognise a pattern (I suspect that some of the cases against Birmingham were in this category; and see the comments on gatekeeping below the Andy Gale inspired post). Put simply, there is need for better – well, actually, any – data collection of the numbers of reviews and success rates in the service of administrative justice; and, if we were open to challenge and change, we would publish this data. But I’m personally also in favour of local housing and welfare courts which run an inquisitorial process.