Richard Kirkham and Elizabeth A O’Loughlin: What Do Judges Actually Do in Judicial Review? An Argument for Systematic Studies

There is abundant theoretical and doctrinal literature appraising the parameters of the decision-making strategies employed by courts in judicial review cases. Much of this literature assesses normative features of the judicial role, but in doing so there tends to be a relative deficit of core evidence on how the judiciary actually exercises their discretion in judicial review proceedings. The danger of this shortfall is that theoretical and policy debates on the judicial review function are too often based on highly selective, senior court centred, and sometimes inaccurate accounts of real practice. To combat this knowledge gap, we advocate for the greater take-up of deep systematic studies into discrete areas of judicial decision-making. This post provides an example of the rich insights that this approach can bring. We suggest that such work needs to be undertaken and incorporated into normative debates on the limits and scope of judicial review.

An empirical study into the function and strategy of judicial review

In the UK, the manner in which the judicial review of administrative power is exercised is weakly defined in statute. In implementation, therefore, there is considerable judicial autonomy to manufacture and adjust the parameters in which judicial review operates. For some, this judicial freedom is disturbing, for others it is a source of opportunity, but on both wings of the debate the evidence is slim on how judicial discretion is exercised on a day-to-day basis.

To achieve a systematic understanding of the practice of judicial review, in a recent study we analysed in depth a full sample of case law from one branch of administrative law – challenges of decisions by an ombudsman (including case law in the legal systems of England and Wales, Northern Ireland and Scotland). In the UK, the ombudsman landscape is diverse, spanning both the public and private sector (e.g. Local Government Ombudsman, Financial Ombudsman Service), and being variously generalist and specialist (e.g. Parliamentary and Health Service Ombudsman, Independent Police Complaints Commission). We were particularly interested in the strategies deployed in judgments challenging the decisions of statutorily-created ombudsman schemes, and what this reveals about the functions of judicial review in this area.

We interrogated such ‘strategies’ by exposing whether the judge applied ‘thin’ or ‘thick’ interpretations of the legal obligations and powers of the ombudsman in question. Briefly, through ‘thin’ strategies we mean judges expressly adhering to face-value statutory duties and demonstrating reluctance to challenge decision-making made under a clear discretionary power. By contrast, ‘thick’ strategies reveal a judicial tendency to adopt broader meanings to statute based on wider reflection of Parliament’s intention, as well as a willingness to deploy judicially created extra-statutory standards (both procedural and substantive) to scrutinise otherwise lawful discretionary decision-making.

In one procedural respect the courts have adopted a ‘thick’ rule of law practice in ombudsman cases. Only one statutory scheme (the Scottish Legal Complaints Commission) provides for appeal of ombudsman decisions to the court. Other statutes are silent on the issue but the courts have nevertheless invoked their inherent power to establish jurisdiction to review decisions of ombudsman (for a critique see Varuhas). This apparent ‘power-grab’, however, is heavily controlled by factors of cost and the strong filtering role performed by a pre-hearing permission stage. The end result is that just 108 cases have been brought involving an ombudsman decision over a 40-year period, compared to a current output of over 500,000 complaints per annum. Of those cases, claimants are successful in 31% of cases, less than all judicial review claims (41%). Nor in our study did we find much evidence that judicial review is successfully deployed to secure out-of-court settlements before a hearing.

In ombudsman cases, therefore, the courts secure redress on very few occasions. Further, although some ombudsman cases are brought by private bodies (28), very few in recent times have been brought by public bodies (7 in total, but only two out of the last 98 ombudsman cases), meaning that the bulk of cases are brought by individual complainants (73). Once the large numbers of judicial review applications, mostly by individual litigants, that are rejected at the initial permission stage are taken into account, this suggests that where ombudsman schemes are being challenged a major function of judicial review is one of ‘expectations management’. In other words, judicial review is part of an elongated process through which complex and sometimes unresolvable public service grievances are gradually ‘managed out’ of the system and closed through layered, and increasingly formalised, forms of dispute resolution.

In terms of the grounds used to explain judicial decision-making in ombudsman cases, thin interpretation strategies (for example, compliance with specified statutory parameters of decision-making) dominate, with ‘thicker’ legal arguments by the applicants (for example, rationality review) rejected by the court on a large scale.

What ombudsman case law does reveal, though, is a selective willingness of judges to deploy thicker strategies of legal reasoning when ombudsman decisions are not upheld. Mostly this thicker approach to the rule of law is conducted through common law grounds, rather than statutory interpretation (on only two occasions did a thick form of statutory interpretation lead to an ombudsman decision being quashed). Thus we found that 10/112 cases have been resolved on the ground of irrationality; in 12 cases the adequacy of reasons was found to be flawed; and on 5 occasions the court have enforced a standard of procedural fairness that was not specifically required by legislation.

To explain this pattern of judicial decision-making, we found that in the context of ombudsman cases, the common law was being used to provide bespoke judicial guidance on the operational standards that should be deployed in the sector, particularly on the quality of reasoning and evidence that was required. Further, this form of judicial guidance is offered in cases in which ombudsman decisions are upheld, as well as quashed. Therefore, the function of judicial review goes beyond interpreting a public body’s obligation to operate within lawful power, and additionally tests and defines the qualities its decisions must demonstrate.

Implications for understanding the function and strategies of judicial review

In the UK constitution, judges have a broad discretion to deploy thick as well as thin strategies of judicial decision-making (as defined above), and this has implications for the functions which judicial review performs. Ultimately the efficacy of the solutions adopted by the courts in any given policy or institutional area can be revised by the legislature. Such legislative design choices are based in part on theoretical questions regarding the role of judicial review, but also on the extent to which the different potential functions of judicial review hold value from the perspective of all stakeholders involved.

The statistics on turnover in the ombudsman case study suggest that the value of judicial review to the user is likely to be small and intermittent. For other stakeholders though, our study indicates that judicial review may offer high potential value in at least two respects. First, judicial review builds in an additional option through which aggrieved users of public services can seek dispute resolution. This development can be seen in part as a direct response to growing pressures in the ombudsman sector. Second, given that legislative reform is unlikely, judicial review offers a reserve mechanism through which important gaps and uncertainties in the law can be determined, which encourages the homogenisation of service standards across the sector.

With ombudsman cases, therefore, we found evidence of targeted and bespoke thick rule of law jurisprudence operating alongside a dominant deferential and thin rule of law interpretation of an ombudsman’s powers. It is not our argument that the above account of the functions and strategies of judicial review are applicable, or should be imposed equally, on all areas of public service and administrative discretion. Instead, we hypothesise that in other areas of public life the pattern of judicial decision-making will be different. To understand how the judicial review function is operated, and to inform theoretical debate, we need more frequently to undertake deep empirical analysis to detail what actually happens in day-to-day judicial review claims.

Richard Kirkham is a Senior Lecturer at the School of Law at the University of Sheffield and Elizabeth A O’Loughlin is a Lecturer in Law at City Law School.

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