How Many Judicial Review Cases Are Received by UK Government Departments?

During the debate in parliament on Monday 1 Dec 2014, Chris Grayling (Lord Chancellor and Secretary of State for Justice) was asked how many Judicial Review cases are brought against government ministers.

Julie Hilling (Bolton West) (Lab): The right hon. Gentleman says “all the time”. Will he give us a notion of how often that is—once a day, once a week, once a month? How many times have such cases happened since April, for instance? He is giving the impression that they happen all the time, but what does that mean?

Chris Grayling: A Minister is confronted by the practical threat of the arrival of a judicial review case virtually every week of the year. It is happening all the time. There are pre-action protocols all the time, and cases are brought regularly. Looking across the majority of a Department’s activities, Ministers face judicial review very regularly indeed. It happens weeks apart rather than months apart.

The minister gave no actual numbers in his answer. So, in this post I’ve looked at how many judicial review (JR) cases were received by central government departments (‘ministers’) over the past few years. This analysis relates to my work with Christopher Hood in the Politics Department at Oxford.

There is a good discussion of the wider issues raised by Chris Grayling’s responses during that debate by Mark Elliot on the Public Law for Everyone blog. In this post I just look at the numbers.

The number of JR cases received by each UK government department can be found in this database of JR cases from 2007 to 2012, which lists over 57,000 JR applications, giving the topic, defendant and outcome of each case. For this analysis, I corrected the data for misclassifications according to this revision note. (More recent JR databases are correctly classified, but do not report the defendants).

The largest group of JR applications were Immigration and Asylum (IA) cases (almost 10,000 in 2012, or 80% of the total). In the future IA cases will be almost entirely considered by tribunals, so I’m excluding them here (and in any case, they do not appear to be the type of case that the Justice Secretary was referring to).

There were just under 2500 ‘non-immigration’ cases per year, which I show in the graph below split into four broad categories of defendant: Criminal Justice System (e.g. courts, police, prisons), Local Authorities, Central Government Departments, and ‘Other’ (e.g. medical councils, schools, NHS and tribunals).

Judicial Review Cases (excluding Immigration and Asylum)

Judicial Review Cases (excluding Immigration and Asylum). Source: MoJ database 2013

Central government departments received fewer than 500 JR cases each year, broken down by department as follows:

2007 2008 2009 2010 2011 2012
BIS 11 5 4 5 4 5
Cabinet Office 0 1 0 2 4 3
DCLG 38 25 20 28 23 12
DCMS 1 0 0 0 2 0
DECC 0 0 2 5 11 2
DEFRA 21 40 25 12 18 15
Department for Education 5 3 2 9 6 10
Department for Transport 6 8 5 4 2 10
Department of Health 9 11 6 11 4 6
DWP 43 37 23 18 28 31
Foreign Office 0 3 5 3 1 1
HMRC 44 39 37 39 39 51
Home Office 92 50 54 53 48 39
MOD 12 10 19 24 11 8
Ministry of Justice 123 214 250 260 247 257
Treasury 2 7 6 2 5 3
Central Government Departments Total 407 453 458 475 453 453

Only four departments received more than 15 judicial review cases in 2012. By far the most were received by the Ministry of Justice (MoJ, 257), followed by HM Revenue & Customs (HMRC, 51), the Home Office (39) and Department for Work and Pensions (DWP, 31). The other ~20 Whitehall departments received an average of about 5 cases a year (a few received none over the six years and don’t appear in the table).

The breakdown of non-IA JR cases by government department 2012 (Source MoJ database)

Non-IA JR cases received by government departments in 2012. Source: MoJ database 2013.

The topic ‘Prisons’ made up 70% of MoJ cases, ‘Tax’ and ‘VAT’ comprised 90% of HMRC cases; 80% of DWP cases were about benefits and social security. No single topic dominated the Home Office non-IA cases (though this department also received the vast bulk of IA cases).

The information in the database is not detailed enough to identify the ‘politically motivated’ cases that particularly concern Chris Grayling. Planning is sometimes mentioned as an area in which JR is used to delay important infrastructure projects. In 2012 just 10 JR cases regarding ‘Town and Country Planning’ were addressed to government departments (9 to DCLG and 1 to DEFRA) compared with 188 addressed to local authorities.

Considering the vast numbers of government decisions that are made every year, we don’t see an explosion of judicial challenges to central government departments. The Ministry of Justice is a clear outlier, receiving more than half of all such cases (and another large tranche of cases is concerned with the wider criminal justice system). Perhaps the minister should look at the quality of decision-making in his own department and its agencies before seeking to limit judicial review.

[Update: this was reblogged on LSE British Politics & Policy Blog , The Justice Gap, Democratic Audit, Politics in Spires and OpenDemocracy]

See also my follow-up post on the outcomes of judicial reviews.

5 thoughts on “How Many Judicial Review Cases Are Received by UK Government Departments?

  1. What would be useful is to then cross reference this with the work required to deal with judicial review requests. These are not small matters as the government has to adjust its policy while the JR is being heard. In some cases, a JR is there to stop a decision from proceeding. As a result, the policy cannot be implemented and anything else that depends on that decision has to be paused or adjusted. The ripple effect from a JR is not insignificant.

    Once we do that analysis, the second question emerges. How many of these JR lead to a change in the policy or decision? I would suggest that the government rarely loses JRs because it has spent a fair bit of time preparing for the decision or the policy. We have to remember that these decisions or policies have already been through the policy making process, which has its own tests, checks, and balances. The JR stems from a fear of arbitrary decisions. However, most bureaucracies, especially modern ones, are rarely arbitrary.

    If the government is not losing more than 10% of these JR, then we can see their concern. Moreover, the role of JR as a final appeal might be better placed in a legal framework of appeals rather than a final resort above and beyond the appeals process. By that I mean, as a last ditch appeal beyond the judicial system or political system of appeals.

    Thanks for the interesting work on this topic.

    Yours sincerely

    Lawrence Serewicz

    • Thanks for your comment, Lawrence. I agree that we can’t tell the actual effect of JR cases from the bare statistics. But I’d like to make two points –

      1. The government has often used the overall number of JR cases as a proxy for their impact, and given the impression that the numbers are rising steeply throughout government.

      2. The reported outcomes of cases do not necessarily reflect their merit. Maurice Sunkin and colleagues have shown that a significant number of cases that are classed as ‘withdrawn’ are actually settled to the satisfaction of the applicant, even though they don’t show up in the statistics as ‘lost’ by the public authority.

      You are quite right that much more fine-grained research is needed to find out how many cases led to policy changes – sadly that’s beyond the scope of this blog!

  2. Pingback: How many judicial review cases are received by UK government departments? : Democratic Audit UK

  3. Surely the fact that the majority are immigration cases, increased due to the withdrawal of the right of appeal says it all? Removing judicial review of immigration cases would be consistent with May’s utterings and with the government’s unworkable immigration policies.

  4. Pingback: Outcomes of Non-IA Judicial Review Cases | My Garden Pond

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