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Funding and legal aid, Human rights/equalities, Judicial review, Research

Busting the myths of judicial review: new empirical evidence on outcomes and value for money

This post summarises the findings of a study into the effects of judicial review (JR) in England and Wales which was funded by the Nuffield Foundation and undertaken by the Public Law Project and the University of Essex, with Maurice Sunkin as the Principal Investigator.
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By Varda Bondy, Lucinda Platt and Maurice Sunkin

Overview

The Value and Effects of Judicial Review: The Nature of Claims, their Outcomes and Consequences concerns the use and effects of judicial review (JR) in England and Wales, primarily from a claimant perspective. Judicial review provides a route for obtaining legal redress against public bodies, including in human rights cases, when no other suitable remedy is available. It also provides a means by which public bodies may be held accountable for the legality of their actions. In these ways JR gives practical effect to the rule of law.

The research:

  • builds on previous work to throw additional light on how and why JR is used and what, if anything the parties, and in particular claimants, achieve from the process, whether challenges are successful or not;
  • explores the tangible and intangible consequences for claimants of JR cases; whether judgments have implications beyond the parties, including in relation to the policies and procedures of public bodies; and JR’s contribution to the clarification of the law, and to improving human rights protection; and
  • provides significant fresh data on levels of costs, the nature of costs orders, and the relationship between legal aid funding and the outcomes for claimants.

Principal findings

There are a number of widely held and influential assumptions about the costs and misuse of JR. First, that the past growth in the use of JR has been largely driven by claimants abusing the system, either deliberately or otherwise. Second, that the effect of JR on public administration is largely negative because JR makes it more difficult for public bodies to deliver public services efficiently. Third, that JR litigation tends to be an expensive and time consuming detour concerned with technical matters of procedure that rarely alters decisions of public bodies. These claims have been challenged for their lack of empirical basis and this study provides additional evidence which shows them to be at best misleading and at worst false.

In particular our findings show that:

  • Claimants for JR gained a wide range of tangible benefits: the most common of which were conferment or retention of a service by a public body and getting the defendant public body to make a decision where prior to JR proceedings they had not done so.
    • When public bodies reconsidered decisions which had been found to be unlawful in JR proceedings, they often reached a fresh decision which favoured the claimant, rather than merely correcting the process by which the original decision was made.
    • In such cases JR makes a significant and substantive contribution to outcomes of disputes between claimants and public bodies. These outcomes were more than technical, formal, or symbolic: the public bodies generally appear to have genuinely engaged with the issues raised and their engagement was not wholly defensive or negative.
  • Legal aid played a significant role in enabling claimants to obtain tangible benefits
    • Legally aided claimants were more likely to have obtained tangible benefits from their claims than privately funded claimants.
    • Higher cost to the legal aid fund was associated with greater benefit to claimants.
    • Higher costs, including to the legal aid fund, may therefore lead to ‘good value’, especially from the claimant’s perspective.
    • Restrictions on legal aid to support JR claims are likely to have a disproportionately adverse effect on those forced to resort to JR in order to obtain services to which they are legally entitled.
  • Claimants were said to have had a wide range of positive and negative reactions to the process and to the outcome of their cases
    • The most common positive reactions were said to be an increased sense of empowerment and increased confidence in the legal system.
    • While these reactions were much more likely when claimants had been successful in court, they also occurred in a not insignificant proportion of the cases where the claimant was unsuccessful.
    • The most common negative reactions were said to be stress and frustration and lack of confidence in the legal system. Not surprisingly, these tended to arise when claimants were unsuccessful, but were not limited to such cases.
  • JR judgments are seen to have significant impact in relation to policy, procedure, the clarity of the law, and human rights protection
    • While JR imposes costs on public bodies it is acknowledged to enable improvements in the quality of public administrative and assist public bodies to meet their legal obligations.
    • Even failed challenges were often considered to have led to improvements in the provision of services by public bodies and to more positive engagement between the parties.
  • Our findings do not indicate the existence of widespread abuse of the system by claimants seeking to use JR for public interest or political purposes, such as would justify a general restriction on access to the Administrative Court.
  • Instead, they illustrate the varied ways by which JR may be considered to add value in relation to the direct rights and interests of claimants, their experience of the legal system, and in terms of the wider contributions of JR to such matters as the clarity and development of the law.
  • Overall, the findings underscore the importance of access to the High Court’s inherent supervisory jurisdiction, for claimants, defendants, and for the wider public interest.

See also the LSE Politics and Policy Blog post reporting on the research findings.

Discussion

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