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.
The fall took place against a background of criticism by ministers. The attorney general, Suella Braverman, before taking office railed against “chronic and steady encroachment by … judges” and last year said in some cases they had “strained the principle of parliamentary sovereignty”. The lord chancellor, Dominic Raab, has warned judges against “harpooning” government infrastructure projects.
Boris Johnson doubled down on attacks on “lefty lawyers” after being forced to cancel the first planned Rwanda deportation flight last week after an injunction granted by the European court of human rights (ECHR) to one of the people due to be removed. The prime minister responded by accusing English lawyers of “abetting the work of criminal gangs” who facilitated Channel crossings. Raab suggested judges at the ECHR had overreached.
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.”
Buckland was sacked and replaced by Raab in September, with many believing he paid the price for not going further in the judicial review bill to restrict challenges to government. In December, the Times was briefed that Johnson was planning to let ministers throw out judicial review rulings they disagreed with, although the prime minister’s spokesperson said it was “not an accurate characterisation”.
A report published this month by the all-party parliamentary group on democracy and the constitution said ministers had acted improperly by questioning the legitimacy of judges when they did not get their own way and that the lord chancellor and attorney general had failed to defend the judiciary – often doing the opposite – as the pairs’ roles had become politicised.
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.
Jolyon Maugham QC, director of the Good Law Project, which identified the drop in the success rate and has been involved in high-profile judicial reviews against the government relating to Brexit and the VIP lane for suppliers of Covid personal protective equipment, said there was a risk the rule of law “could easily become a relic for the history books”.
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.”
Three landmark judicial review cases
In 2016, the high court ruled that parliament had to give its consent before the government could trigger article 50 and formally initiate Brexit, prompting criticism by ministers and the infamous Daily Mail “Enemies of the people” headline. The decision was upheld by the supreme court which, in 2019, would rule that Boris Johnson’s prorogation of parliament during the Brexit crisis was unlawful, again angering the government.
In 2017, the supreme court ruled that employment tribunal fees of up to £1,200 were inconsistent with access to justice, forcing the Ministry of Justice to scrap the fees and entitling those who had already paid them to a refund. In the judicial review brought by the trade union Unison, the judges also found that fees were contrary to the Equality Act 2010 as they disproportionately affected women.
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.
