HomeNewsDramatic fall in successful high court challenges to government policy
Dramatic fall in successful high court challenges to government policy
June 23, 2022
Successful high court challenges to government policy and decisions by public bodies have fallen dramatically, prompting warnings that ministers’ attacks on lawyers could be having a chilling effect on judges.
The proportion of civil judicial reviews in England and Wales, excluding immigration cases, which claimants won out of total claims lodged fell by 50% on 2020, according to analysis seen by the Guardian. The figure is 26% if the success rate is measured out of cases that went to a final hearing.
Responding to the judicial review figures, Raab’s predecessor as lord chancellor, Robert Buckland QC, said: “There’s certainly a downward trajectory on the year before – whether it’s a trend it is probably too early to say. But I would be very concerned if judges were feeling under pressure or in any way responding directly to comments made by ministers – that would not be desirable or appropriate.”
The figures for the high court, obtained using the Ministry of Justice (MoJ) online analysis tool, show that there were 31 civil judicial reviews (excluding immigration) found for the claimant last year, the lowest since available records began in 2001, compared with 68 (the previous low) in 2020.
The success rate last year was also the lowest on record, whether as a proportion of total cases lodged (2.2%) or those that went to a final hearing (30%). By comparison, the average success rates between 2016 and 2020 were 4.7% of total cases lodged and 38.9% of those that went to a final hearing.
He said: “The data suggests a collapse in judicial scrutiny of the government. We cannot know this is because of how ministers speak about judges and the law – but it is not easy to identify plausible alternative candidate explanations. Privately, senior judges are worried. And they should be.”
Other observers said there were already signs the supreme court had become more conservative. An analysis published by the UK Constitutional Law Association comparing last year with 2020 suggested the UK’s highest court now had more of “a tendency to reject human rights claims (only two out of 18 were successful last year) and to side with public authorities”.
In January, Patrick Hodge, the deputy president of the supreme court, spoke at an event run by the Judicial Power Project (JPP), one of the foremost critics of alleged judicial overreach, although he stated that “I don’t agree with some of the premises [of the JPP]”.
Jonathan Jones QC (Hon), the former head of the government legal department, said the reduction in the judicial review success rate “sounds significant” but it was difficult to draw conclusions why it had occurred. However, he highlighted comments by Braverman and Raab, adding: “We have also seen some more government-friendly language from the supreme court and one or two significant decisions, eg on standing,” (which limited who can challenge an alleged harm).
Conor Gearty QC (Hon), barrister and professor of human rights law at LSE, said while judges did their best, “the number of wins has always been very small, and now we see a drastic reduction in even that small percentage”.
He added: “It is hard to avoid the thought that the background noise of hostility to the judges and the courts, being generated relentlessly not only by ministers but even by the attorney general herself, has had an effect.
“The apparent desire of the supreme court to restrict the range of arguments before the courts and to cut back on challenging socio-economic claims may also have had some effect. These are worrying times for those who see accountability to the law as an essential feature of democracy.”
A MoJ spokesperson said: “Judicial review decisions are entirely a matter for independent judges, who now have greater powers to resolve cases in a more flexible and practical way thanks to our reforms.”
The government’s attempts to force the bedroom tax on partners of people with severe disabilities, which would have seen their housing benefit reduced by 14% for having a “spare” room, was ruled unlawful by the supreme court in 2019. The judges said that applying the reduction to a man referred only as RR, was a breach of his right to a home under the Human Rights Act. They said RR’s partner was severely disabled so “it is accepted” that the couple needed an extra bedroom for her medical equipment. The effect was to restore full housing benefit to RR, and at least 155 other partners of disabled people.