Sunday, 2 December 2012

Judicial review - statistics update


Labour MP Frank Dobson has obtained more detailed figures for judicial review applications from the Ministry of Justice, in a written answer to a parliamentary question which appeared in Hansard last Monday (26 November). He asked the Secretary of State for Justice how many applications for judicial review related to planning or infrastructure proposals have been made in each year since 1998, and how many of those applications were (a) allowed to proceed to a hearing and (b) granted.

Until I saw these figures, I had assumed that planning cases would account for a majority of the ‘other’ cases in the JR statistics previously quoted. Not so. The numbers of JR (i.e. non-statutory) cases relating to town and country planning in the period in question were: 1998 – 112; 1999 – 116; 2000 – 121; 2001 – 142; 2002 – 119; 2003 – 122; 2004 – 119; 2005 – 140; 2006 – 142; 2007 – 151; 2008 – 184; 2009 – 165; 2010 – 148; 2011 – 191.

The first point which is immediately apparent is the very low numbers, compared with the total of JR applications in those same years. These figures pale into insignificance, compared with the headline total of 11,200 JR applications last year being bandied about by the government. In fact, even as a proportion of ‘other’ JR applications (i.e. other than immigration/asylum and criminal cases), planning-related cases account for only about 7 or 8 per cent (9% at most, in some years). As a proportion of all JR applications, planning-related JR applications account for less than 2% of the whole!

It is also clear that the upward trend in the number of applications (if there is one) is uneven. Numbers have gone down as well as up over the past 14 years - for example in 2002 (down 16% on 2001), 2004 (down 2% on 2003, and still down 2% on 2001), 2009 (down 10% on 2008) and 2010 (down 10% on 2009, and down 20% on 2008). The 191 planning-related JR applications in 2011 represent quite a jump compared with 2010 but, on previous performance, it is quite possible that 2012 might possibly see a drop in this number.

The fact remains that 29% of a very small number (comparing the increase in 2011 over 2010) is still a very small number. This is hardly a “growth industry”, as the PM described it in his CBI speech.

The other point which seemed to be exercising the PM was an alleged rise in the number of ‘hopeless’ JR applications. The answer to Frank Dobson’s question also shed light on this. The number of cases that received permission from the Court to proceed (and the percentage of total planning-related JR cases which these figure represent in each year) were: 1998 – 51 (= 46%); 1999 – 56 (= 48%); 2000 – 68 (= 56%); 2001 – 63 (= 44%); 2002 – 47 (= 39%); 2003 – 54 (= 44%); 2004 – 49 (= 41%); 2005 – 44 (= 31%); 2006 – 50 (= 35%); 2007 – 51 (= 34%); 2008 – 67 (= 36%); 2009 – 64 (= 39%); 2010 – 46 (= 31%); 2011 – 61 (= 32%).

Thus, in most years, at least a third of planning-related JR application were given permission to proceed, which is a much higher proportion than the average for other types of JR application. Furthermore, it is not possible to discern any clear trend from these figures which would suggest that there has been any increase in hopeless applications in this area of the law. The notion that Cameron was peddling that there is a rising tide of hopeless JR applications, made simply as a delaying tactic to frustrate development projects, is clearly nonsense. There is already an effective process to weed out unarguable cases, and it is hard to see how a more stringent procedure could be devised without going into the case in more detail to ascertain whether it is not merely arguable but stands a reasonable chance of success. This would turn the initial filtering process into something much more akin to a substantive hearing, and would entirely defeat the object of the exercise.

Finally, the figures show the number of planning-related JR applications that are granted, i.e. where a quashing order is made or other appropriate relief is granted by the Court. These were (with the percentage success rates, compared with the number of cases given permission for a substantive hearing): 1998 – 10 (= 20%); 1999 – 19 (= 34%); 2000 – 29 (= 43%); 2001 – 17 (= 27%); 2002 – 12 (= 26%); 2003 – 11 (= 20%); 2004 – 10 (= 20%); 2005 – 11 (= 25%); 2006 – 7 (= 14%); 2007 – 17 (= 33%); 2008 – 14 (= 21%); 2009 – 15 (= 23%); 2010 – 17 (= 37%); 2011 – 6 (= 10%).

There is no discernible trend in these figure. Clearly, each of these cases was arguable; otherwise they would not have been given permission to proceed, but the success rate is bound to vary, and I am not aware that it has ever been significantly higher than these figures would appear to suggest. As it is, there seems to be a greater chance of success in planning-related JR cases than in other types of JR application.

These figures certainly do not justify any significant procedural change in relation to judicial review applications. As matters stand at present, a claim for JR is initially considered by a judge on the papers, and if dismissed can then be renewed for oral hearing before another judge. The government seems to want to stop the process at that point, whereas at present the application for permission to proceed can be taken on to the Court of Appeal and, in rare cases, to the Supreme Court - a change brought about by the case of Birkett, reversing the previous ruling in Re Poh (which had prevented such an application being appealed from the Court of Appeal to the House of Lords).

As I indicated in my earlier post on this topic, and as a number of other planning and public law specialists have pointed out, Cameron’s other proposal - that it should be made more expensive to apply for JR - would appear to be in breach of the Aarhus Convention, so far as environment-related cases (which would include planning) are concerned. It was precisely in order to ensure compliance with the convention that the MoJ put forward proposals only a few months ago to limit the costs in environment-related judicial review cases.

In addition to these statistics on JR, Hilary Benn, who shadows the communities and local government brief for Labour, asked for the figures for statutory quashing applications under sections 288 and 289 of the 1990 Act. A written reply to this question was also printed in Hansard for 26 November, and if time allows I will take a look at it in a future post.

© MARTIN H GOODALL

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