 Good morning, everyone, and welcome to the third day of this conference. My name's Robert Thomas of the School of Law University of Manchester. I'd like to welcome you here this morning and also to welcome our speakers. There's been much discussion throughout this conference about administrative law, and in particular judicial review, and in particular discussion about the doc trinol innyfio Food and theoretical aspects of judicial review. That provides real insight. Much-needed insight into how judicial review operates. We also need a variety of different methodologies to understand public law. There's no single method that by itself can shed light on the entirety of the subject. One crucial issue concerning judicial review is what impact o'r effekt? Does it actually have on government? What difference does judicial review have on political and governmental behaviour? It's therefore essential to have detailed and informed studies of judicial review in practice, and it's also important to have empirical data and empirical research into the role and impact of judicial review on government. We are therefore very fortunate today, this morning, to have two papers by three highly distinguished speakers who have closely studied the operation of judicial review in practice. The names of Harlow and Rawlings are something of an institution in administrative law, and together Carol and Rick have produced a classic text, law and administration, in addition to pressure through law, and they also have a forthcoming book, Process and Procedure in European Union Administration. Carol is Emeritus Professor at LSE, and Rick is Professor of Public Law at UCL, and they'll be delivering the first paper. We also have Maurice Sunken, who's Professor of Public Law and Social Legal Studies at the University of Essex, and Maurice has spent years, I think, studying, undertaking empirical research into the operation of judicial review, the dynamics of judicial review litigation, and also whether or not judicial review improves the quality of public services. Can I ask you to welcome our speakers this morning? Well, I was going to say good morning. I think I'm going to say well done, guys, because nine o'clock after a conference dinner and parking your luggage, et cetera, is a remarkable achievement. Okay, we're talking about striking back and clamping down, and the title changed, and the one originally advertised for a reason I'll explain it. Now, what we mean by striking back is the idea of deliberately negative official responses to court rulings, and we think that this is something which is all too often glossed over in the literature on judicial review. Clearly, as Rob suggested, it feeds into discussions of impact, and it's also an intrinsic part of the burgeoning law and democracy debate, which is so familiar in this jurisdiction today and so many others. By presenting this paper to the conference, we're trying to redress the balance a little. Striking back, we want to emphasise, is hardly new, nor is it confined to the Westminster model of parliamentary government, though I think we can all see that the opportunities for striking back under the Westminster model of parliamentary government may be particularly strong. Now, this is a topic that Carol and I have long been interested in as part of our general functionalist take on the role and contribution of law in politics and in the administrative process in particular, and to Carol goes the honour of, I think, the first paper in the UK on this subject in 1976, where typically she was warning against the complacent view that when the courts barked, if indeed they ever did in those days, administrators and politicians jumped. And she, in turn, was drawing on some work that she'd done in France and the work of great French administrative lawyer Guy Braybon who had looked at the phenomenon of striking back and had identified a number of possible techniques, delay, retaking a decision that's already been quashed in the same way, and of course, validatory legislation. And in typically blunt language, Carol added, quote, simply disobey, unquote. And this topic has really been a leap motif, I think, of successive editions of our book, Law and Administration. And we've been particularly interested in the way the changing opportunity structures, if you like, for government to respond to judicial review in this way in a changing political and constitutional context. And of course, when Carol was first writing about this in 1976, essentially she was looking at this in the context of a strong doctrine of parliamentary sovereignty. And over the years, we've naturally factored in the growing influence of the European Convention on Human Rights, latterly the Human Rights Act, and of course, the European Communities, now the European Union, starting just before Carol was writing in 1976. But a key point we want to stress today is that despite these overarching constitutional changes, we see a large element of continuity in the practices of striking back. We think that the objectives are often the same, many of the tactics, though not all the targets remain the same. Now that's what I wanted to say about the nature and the history of the inquiry. Second aspect I'd like to introduce this morning is this idea of clamping down. And this is something that we spun out of the paper as we worked on it. Because thinking further about the general theme of the conference, the idea of the interplay of substance and process, we thought it was particularly interesting to emphasise the way in which government through the legislature may seek to change the rules of the judicial review game. In other words, not talking here about particular responses to particular cases, but particular attempts to in some way limit, suppress, even perhaps obliterate the activity of judicial review in certain areas of administration. As a further twist, Rob very kindly mentioned our book Pressure through Law, which was one of the first attempts back in 1992 to consider the role of interest group litigation and litigation strategies in this jurisdiction. An aspect of law and politics, which of course is very familiar in the United States for example. And back in 1992 we noted that striking back and well sorry clamping down may be directed more at interest groups and less at the courts. Of course you can't disentangle the two, but the essential target of government may be interest groups and interest group litigation. And against the background of what even before the Human Rights Act was clearly a growth area of this activity, we hypothesised that one day government might seek to clamp down on this form of activity. We mentioned the possibility of ouster or privative clauses. We noted the possibility of recasting judicial review procedures, for example more restrictive rules on standing to sue and of course limitations on funding. Looking back on that sort of 20 years later perhaps we were more prescient than we would have wished to be. Pressure through Law also opened up another set of activities to view, which was the idea of interest group activity not just inside the domestic system, but looking internationally at the arenas in Luxembourg and in Strasbourg. Those are the aspects that Carol will be focusing on in her part of our talk. Present purposes, that opens up another possibility in terms of clamping down, which is legislating against international legal obligations, and many of you will understand the contemporary link that we have in mind there. In part one of the paper we then look at the way in which striking back and clamping down can play out in what we call Westminster at home situation. In other words, where the doctrine of parliamentary sovereignty is essentially in play. And we document the historical development, first by looking at some very famous illustrations, Panfield, Burma Oil, Anna Zeminick, essentially by asking a question, yes, but what happened next. And then drawing on Tony Cross's excellent work, pioneering work on litigation strategy by the child poverty action group, we look at some of the more ground level responses in particular less well known cases that government and parliament have developed over the years. I was interested yesterday to hear about Australia and the way in which it was argued that attempts to limit judicial activity in Australia had perhaps had the perverse effect of actually strengthening judicial activity. But this phenomenon can work the other way round too. One of the developments that many colleagues will be familiar with in the 1990s in this jurisdiction is the way in which the courts, through a number of creative cases, with them, for example, was mentioned by law justice laws, acted to curb and control the use of lawmaking by regulation. One response to that that we've identified is the idea of fast track legislation, the use on one hand of parliamentary sovereignty to immunise reacting legislation, but on the other hand the use of very attenuated procedures to pass that primary legislation. And that in turn raises normative concerns that run through this paper. We would not argue that striking back responses are per se a bad thing. Government must govern. We all know about the limitations of the judicial review process, and of course government has a particular concern about the interests of the taxpayer. But we would emphasise the importance of procedural legitimacy and picking up on some criteria that Tony introduced all those years ago. We would look for public responses, for informed debates about the policy that government is bringing forward when it is reacting to judicial review, and of course picking up on what Jerry Mashall was saying, reasoned justification. And it has to be said, and Carol will develop this theme further, that there are a disturbing number of illustrations where those criteria do not seem to be met. And then finally, and very briefly, to give Carol adequate time, I draw attention to what we've said about ideas of clamping down. And essentially we see two major attempts at clamping down. First what I called the revenge package back in 2004 when the Labour government fed up with strong judicial, or large numbers of judicial reviews rather in the area of asylum and immigration, attempted a wide-ranging and strong attack on judicial review activity in that area, centred on a strong ouster or privative clause. And we recall the way in which Parliament acted in defence of judicial review on that occasion, in particular the House of Lords, and we're also can't help feeling that the case of Jackson where the certain members of the House of Lords suggested that one day the rule of law by Trump parliamentary sovereignty, well I don't think it's a coincidence that Jackson was handed down just very soon after that big political struggle in Parliament. And then second, we have a second attempt at clamping down going on as we speak. It's less blunt, it involves a number of moves by government, centred on a bill currently before Parliament, and it is aimed in particular, as we'd suggested all those years ago in pressure through law, at interest groups. So there are some very interesting clauses attempting to impose financial disincentives in particular of interest groups in relation to interventions, test case litigation, et cetera. We wait to see whether that legislation passes, it's got a long way, but then again events in Scotland may so squeeze the remaining legislative programme of the government in the next few months that it may be that this bill is put to one side, we will see. Thank you. First in the second stage of this exploration was to look critically at the idea that the constitution had inexorably changed, which is an idea commonly promulgated, and indeed about which Danny Nicholl has written rather a good book. To summarise, the once-soffering Parliament has been dethroned, making it difficult to trump the judges by the devices which Rick has been talking about, such as astro clauses and retrospective legislation, both of which we noted were extremely suspect under European law. Before moving on, I realised that there are a lot of people in this room that are not obsessed with European affairs, and I just want to make two short points for them. First of all, bear in mind that the jurisprudence of the Luxembourg Court of Justice is binding on British courts, while they simply must take account of the jurisprudence of the Court of Human Rights. That's pretty well known, but I'm reminding you. Secondly, EU legislation takes two forms, regulations which are directly applicable in the Member States, and directives which have to be implemented. They are implemented in the UK either by statute, but in the majority of cases through delegated legislation, orders and councillor. That occurs in one of the cases that we looked at. I would also like to make a much less practical point. Both of these transnational courts function inside political systems where it is very difficult to strike back at the courts directly, because the political leaders are so hard to shift. In the EU there is, to my knowledge, only one publicised example. There are probably other examples, but as they occur in the notably untransparent procedures of the council and the negotiations there, we don't know about them. After the Factor Taman-Frankovic litigation in which the Court of Justice suddenly discovered that the treaties placed an obligation on Member States to make good losses suffered by violations of EU law, the UK did try to get those decisions reversed and they used an inter-governmental conference to suggest treaty changes in order to deal with the position. I think it goes almost without saying that the attempt was entirely unsuccessful. In our paper we've referred to a number of cases and even that's quite a short selection of the cases which actually exist. Even about those I haven't very much time left to do more than describe them. We chose to refer to the very recent case of data protection and the data protection and investigatory powers bill that the government introduced in the aftermath of a Court of Justice ruling that the EU data protection directive was invalid. Now this left the government with a technical problem because it was relying as its power base on regulations which had been introduced to implement a directive which was subsequently thought to be, is said to be invalid. And at the time when the bill was introduced we are told that there was a challenge expected in the divisional court by means of judicial review. So this may be one motive why they suddenly decided to legislate and introduce a bill by fast track legislation, certainly in the house that motive was questioned. But the point we really want to make about the bill was something which occurred during the debate when a leading Eurosceptic asserted to Theresa May, the Home Secretary, that the real target, no it wasn't sorry, it was another Minister of State, that the real target was the European courts that they were trying to strike back at the European courts. He actually said European courts and he talked mostly about Luxembourg but he mentioned Strasbourg. And he said in the debate that only a Canadian style, not with standing clause, would do the job for Parliament in this type of situation. Funnily enough the government didn't respond to that. We discovered however that that sort of bleak prospect for the UK Parliament wasn't entirely true and we noted the occurrence during debates on the recent immigration bill. These introduced new and old in a way techniques of structuring judicial discretion. And one section in the Act as it became the Immigration Act 2014 is particularly fierce because it seems to instruct the judiciary not only on the definition of various terms which is an obvious new technique which Parliament may use to tell the judiciary how they must define certain things. And again there's resonance there with Australia. But actually says in a further section what weight the judges are to give to the criteria that they have to take into account. So in a sense they're saying no European style proportionality, we are telling you what proportionality means in this particular case and once again we await the outcome and response of the judiciary. The second thing we discovered was what we've known this for a long time was that the various supranational arrangements and processes of multi-level decision making afford new opportunities. And there's a spray-bent balance category of delay and the skillful use of jurisdictional technicalities that can help the government here. In the case of the EU we have cited the affair of the UN targeted sanctions by means of asset freezing which are so well known around the world that I scarcely have to go further into it. But there are two particularly important cases in Europe. The first is the case of Cardi which is celebrated for the judgement of the Court of Justice. But Cardi as a suspect underwent 12 years of fruitless and extremely expensive litigation with the end result being no outcome. Despite all the things that the Court said, there was no favourable outcome and he was not delisted and it was left to a UN ombudsman to secure his delisting. In the second case, the case of the Mohardine, they litigated for around a decade in which the Member States played cat and mouse games by getting them listed at the bottom level and the middle level and the top level and using all the jurisdictional problems to prevent them getting off the list. And in both cases Member States played what you might call striking back games using the levels very skillfully. In the case of the Court of Human Rights, there is the well known Hearst case where the Court of Human Rights ruled that a British statute which imposed a blanket ban on prisoners from voting was a violation of the Convention. And the Court itself struck at the UK Parliament by saying that Parliament had never considered the matter although it had had some 60 years so to do. And Parliament itself and not the Government struck back at the Court of Human Rights by moving a resolution that the UK law was in all ways entirely satisfactory. In the interim, the Government had prepared draft legislation and it conducted impeccably impact assessments, consultations, re-consultations and so on and so forth until it finally put in place a draft bill in the year 2012 which was six years or so after the decision. And alongside it was actually defending further cases in Strasbourg which is a good way really of striking back and intervening in a case brought against Italy to argue that Strasbourg ought to reconsider its original decision which Strasbourg refused to do on the grounds of legal certainty. And finally again Hearst was decided as I said in 2006 and so far it has never been implemented and you can see that if any steps were taken they were taken I think by the Strasbourg Court in softening its jurisprudence to accommodate the United Kingdom. From that I think we deduced that Parliament will do better if it can get the domestic courts on its side. I have only time to draw conclusions. There is one case in the paper that you might like to look at. It is of an incredible complexity and I regret to tell you that the footnotes are entirely wrong. But that is a case which I think is quite uncomfortable because Rick and I argue that it actually threatens the whole idea of Westminster governance by suggesting that retrospective legislation or legislation to outlaw litigation in which the government itself is implemented. It may be contrary to the human convention as implemented in the Human Rights Act. But I will leave that there as it is only a first instance decision so far and summarise what we think we have learned. We first as Rick has already said noted that striking back and clamping down has multiple targets and the present government has struck back at public interest litigation because I think it shifts decision making into courts and involves the transnational courts. It has struck back at UK judges and also at their expansionist movement to increase the ambit of judicial review. It has struck back at the Human Rights Convention and the Human Rights Act and at Strasbourg which actually implements or acts as the implementing force for the convention. As Rick said also we have concerns about the legitimacy of some of the traditional practices which don't in our view measure up to the sort of good governance criteria and principles that by and large modern governments have tried to observe. We are quite impressed however with the degree of continuity and the way in which traditional techniques are still in operation. We've noted that some new opportunities have actually been created perhaps to fill spaces that have been left by the introduction of European law. Our conclusion is that Parliament at least believes that it is still suffering. Now we turn over to Maurice Sunkin and his paper. Thank you. Good morning. It's a pleasure to be here and particularly a pleasure to follow Rick and Carol's excellent paper and presentation. The themes in my paper are similar and very compatible with the previous paper. Insofar as I'm going to be addressing the process of clamping down, I think one would put it as Rick and Carol explained, and the basis on which clamping down is occurring and in particular the evidence base for this clamping down. Unlike most of the papers in this conference I'm not going to be talking very much about the law. Much of what I'm going to be saying is about the effect and implications or possible effect and implications of reforms and change. But before I start I ought to acknowledge with thanks the help and involvement of my colleague Govada Bondi who unfortunately can't be with us today. Much of the work that I'm going to be talking about this morning has been undertaken with Vada in her capacity as research director of the public law project. And I'll be talking a bit later in the paper refers to various points that we've co-authored. Now as an overview this presentation and discussion is conducted against the background of the current reforms that Rick and Carol has referred to. And as you know there's quite a rich body of empirically based research on the effects and impacts of judicial review. But little if any use was made of that research by the government in preparing and presenting its reforms. And the government was much criticised for failing to take adequate account of the empirical research on judicial review. And the government was criticised both in Parliament through the Joint Committee on Human Rights and also in proceedings before the House of Lords Constitution Committee. Given that the primary purpose of the government's proposals were to clamp down on the use of judicial review, curtail the use of judicial review. There's one particular exchange in the House of Lords that I think is quite striking and I refer to it in the paper. But it's a series of questions that were put to Chris Grayling MP, Minister of Justice and Lord Chancellor, where he's asked about the evidence base for the government reforms and their implications. And one particular exchange I think summarises the position quite neatly. Lord Hart of Chiltern said, By what proportion do you think that your proposals are going to lead to a decline in the number of judicial reviews? Mr Chris Grayling MP replied, I do not know the answer to that. Now, a striking instance of ministerial honesty. And even with a huge body of empirical research and his fingertips, he may not have been able to answer that question. But given that the main thrust of the reforms was to curtail and reduce the use of judicial review, one would have expected a little bit more insight into the likely implications of the reforms on the way judicial review is to be used. Anyway, in the paper I start by saying that, actually rather ironically, had the government looked closely at the empirical research on how judicial review is using its impact, they might have found in fact that curtailing the use of judicial review is unlikely to have any great effect given that much of the empirical research on judicial review seems to suggest that the instrumental effects of judicial review are relatively minimal. And we've had the paper from Rick and Carol looking at the impacts of judicial review on broader constitutional change, but also the research on the impacts of judicial review on public administration, quality of public administration seems to indicate that judicial review has little direct instrumental effect on public administration. And there's been very little research actually on the impacts of judicial review on providing redress for particular claimants. So they may well have found, had they looked at the research closely, that there's much to support their view that curtailing the use of judicial review would have benefits but relatively few costs in terms of its instrumental effect. However, my paper seeks to present a rather more positive, if you like, less self-effacing view of judicial review's impact, particularly on public administration and the provision of redress. And that it may well be that curtailing the use of judicial review will have rather more severe adverse implications than the government seems to assume. Not only on the use of judicial review by pressure groups but also more broadly, indeed on the quality of public administration. As you know, the research on the impact of judicial review broadly covers three areas. Its impacts on social and policy change, its impacts on public administration and thirdly its impacts on redress. I'm not going to say anything more about one. Carol and Rick have addressed that and it's an issue that's beyond the scope of my particular presentation. But I want to focus a little bit more specifically on JR's impacts on public administration and the provision of redress. The prevailing message, as I say, in relation to judicial review's influence on public administration, is that the courts exert or peer-to-exert relatively little influence on public administration. And Geneva Richardson, when she reviewed the research that's been undertaken particularly in England and Wales on this area, said it seems to show that there's nothing particularly significant about judicial review in relation to the way public administration operates. And the research findings illustrate, she said, the relatively low priority which can be given to juridical norms in the context of bureaucratic decision making. And indeed, she highlighted that where judicial review does exert influence, much of the research seems to indicate that the impacts of judicial review appear to be negative or defensive. And particularly drawing there upon the work of Simon Halliday and Ian Lovland on homelessness decision making, mass decision making in the context of a particular area of public administration, homelessness decisions. And there, the researchers showed just how public administrators tend to use their experience of judicial review to develop defensive strategies to protect themselves against future judge challenges and to develop really various insulating techniques which the researchers regard as negative in so far as they didn't promote the virtues of judicial review. However, there is a rosy of picture, and it's a rosy of picture that I'd like to present. And I can start really with the work that Geoff King's done in the context of social, economic and social rights, where he makes five points about the existing research on the impact of judicial review. First of all, he says that the work on areas such as homelessness may be unrepresentative of the impact of judicial review in other areas of public administration. Secondly, he says that such work takes an adequate note of how practitioner view the impact of the courts. Thirdly, he says that the findings in other jurisdictions have been much more upbeat, particularly in relation to the effect of judicial review as a mechanism of redress than the research suggests in this country. Fourthly, he says that the research undervalues the use of judicial review as a mechanism of individual redress. And the final point he makes is that the research that's been conducted, much of the research that's been conducted, is primarily qualitative in nature rather than quantitative in nature. Not surprising because much of the research has been undertaken by lawyers, and until you get a better quantitative feel for the effect of judicial review in public administration, you have no way of measuring whether or not judicial review is having a marginal effect or a more central effect. Now my paper develops those points, drawing on three studies that I've been involved in over the last few years. One on the impact of judicial review on the quality of local government services in England and Wales. This project was conducted as part of the ESRC public services program. It was one of, I think, very few legally orientated research projects in that program. The second was a project that I conducted with the public law project, funded by Nuffield on the dynamics of J.I litigation. And the third project is a more recent project on the effects and value of judicial review. It's also conducted by Essex with the public law project and funded by Nuffield. And that project is currently being written up. And I'm going to be presenting, the paper presents some findings from that work. First, then the ESRC study. This adopted both qualitative and constitutive methods. And the qualitative methods included a series of case studies. And these case studies were based on decisions that public administrators in local authorities had told us were important. We went and asked local authority officers whether there are any cases over the last few years that they regard as particularly significant in terms of impact. And they gave us a list of cases. And interestingly, the list included very few that we have been aware of previously. These are cases that matter to them, but didn't matter to us as lawyers. They weren't landmark decisions. They didn't necessarily reflect key points of law, key changes in legal developments. They weren't necessarily the sort of cases that we as lecturers would have told our students about in terms of their significance. And two in particular refer to in the paper. One is the, I hope I'm pronouncing it correctly, the beer case against London Barrow of Hillingdon. And the other is the Jay case against Carefilly County Barrow Council. I won't go into any detail about these cases here. Suffice to say that these cases were very interesting when one looked at their impacts because they affected different aspects of local authority decision making. The beer case was essentially about resources. The courts told Hillingdon council that they had certain specific duties to unaccompanied asylum-seeking children. And the duties extended to providing a range of services that Hillingdon had claimed need not be provided. Of course, the immediate impact of this statutory duty to provide an increased range of services was that Hillingdon had certain financial problems to face. It had been doing what it regarded as necessary and possible given its resources. And it now had additional duties, which had financial consequences imposed upon it. And of course the judgment didn't come with any money, if judgements don't come with money. And Hillingdon had to find a way of coping with the decision either by reassessing its resource priorities so that they shifted towards providing services to unaccompanied asylum-seeking children with possible adverse political consequences. Or trying to increase its resource, trying to get more money from somewhere, particularly from central government. And we were told by the officials that this case was a bit of a disaster initially. Whilst it provided certainty and clarity for frontline decision makers, it provided real problems for those who were holding the budgets and having to argue within the various financial committees about the relative allocation of resources across departments. Interestingly, the case came to be a resource for the local authority in its negotiations with central government for more money. Essentially the local authority and other local authorities in a simple position said to government, look, we've been forced by the courts to spend more money, we need more money and the government eventually conceded that that was the case and provided additional finances. So a court decision that initially challenged and posed a problem for the authority came to be a resource in terms of its broader financial obligations. A cifili case was rather different. This case concerned the duties of a local authority to develop care plans for children, young adults who were in need. And the specific issue was the extent to which in developing a care plan the local authorities had to regard to the interests of the family and involved the family in the decision making. A cifili had taken an approach that was informed by their practice and culture, which was heavily criticised by the courts, and Mr Justice Munby, as he then was, was highly critical of the practice of local authority and local authority in general in the way they developed care plans. And he called for a fresh culture. I think somebody said that one doesn't want to have a courts instruct to public administrators how to conduct their business, but here's a case where Mr Justice Munby was very specific. He gave quite clear instructions to local authorities in general as to how care plans should be established. Now that case also came as a complete shock to the local authority. It wasn't expecting the challenge. It didn't like the challenge. The social workers didn't like the idea of having, if you like, a court telling it what to do. We were told that the judges didn't understand how difficult it is to manage this particular area, what judges didn't know what it's like to work with a difficult child who didn't cooperate with them, wouldn't turn up for meetings and so on and so forth. And it was initially regarded as a judgment that forced social services to adopt what you might call judicial standards in a context where they've not been previously regarded as necessary or possible. However, in the fullness of time, the local authority did redress, did reassess its practice, and it did change its procedures and become more as it were legal in it in the way it approached this particular field of decision making. And it became a model in the area. There were conferences held in Wales and elsewhere where Keffinnie became the model local authority in this field. And later on, the officials said, well, yes, we didn't like the case when it first arrived on our doorsteps, but actually it was a really good decision. And it's improved the quantity of what we're doing, and we're very pleased we went through that awful experience. Now, I don't know when we were interviewing these people whether somebody had a gun to their head or whether they thought, well, we better say nice things about lawyers. But that's what we were told. And it's suggested that this idea that the judgements are always negative and also always inconvenient and don't have positive effects on public administration is a worse, a complete caricature and a best. And that does not reflect the actual subtleties of the situation. Anyway, the other aspect of this research is also quite interesting. The quantitative aspect of the research, and I should say that I was not leading on the quantitative aspects of the project. My colleague Lucinda Platt, who is now Professor of Social Policy at the LSE, was the leader in this aspect of the research. And we were concerned with two issues really with the main issues, the effect of judicial review on the quality of local authorities. Of course, what is quality? How do you assess quality? We used the Comprehensive Performance Assessment Scores. This is a range of scores that are used by government to assess the quality of local authority performance. And these scores were used for funding purposes. And these are Comprehensive Performance Assessments that are looking overall at the quality of local authorities service provision. They're not ideal, they're very rough and ready, there's a lot of criticism of them, but they were one measure of quality that we could use that we thought might help us. They don't reflect compliance with legal standards or judicial norms or values of judicial review, so we can't tell whether high quality in terms of CPA means high quality in terms of legal compliance. However, in asking two questions, do poorly performing authorities attract high levels of judicial review than better performing authorities? We thought we would get some sense of whether there are leads between quality and judicial challenge. And the second question was, do legal challenges lead to improvements in the quality of services? Of course, the most interesting question from our point of view. The answer to the first question, do poorly performing authorities attract more challenges, the answer is yes. Yes, but, and there's some qualification of this, and it's discussed in the paper. The second question, which I want to spend a little bit of time on, do legal challenges lead to improvements in the quality of services? Our hypothesis actually was that the more an authority is challenged, the lower the quality of its services should be. I mean, that seemed to be the logic of what everybody was saying, but judicial review challenges absorb resources from core areas of service provision and focus resources that are needed elsewhere on particular problems with a resulting decline in the quality of what the local authorities do. In fact, we didn't find that at all. We find that there's a statistically reliable association between an increase in the incidence of judicial review from the level authorities previously experienced and the achievement of higher CPA scores. Now, I've idolised the increase. It's very important. We're talking about an increase in the experience of judicial review. So there are broadly three types of local authority in terms of judicial review experience. Those that are highly challenged, those that are very rarely challenged, and most local authorities in England and Wales are very rarely challenged, and very rarely challenged perhaps 80% of authorities in England and Wales are challenged no more than two or three times a year. Many authorities in that category, and there are obviously authorities in the media. But in each instance, where the authorities had an increase in the level of challenge against them from the normal experience, there was an increase in the quality as measured by the CPA scores. Now, of course, there's a caution in racial causality. We couldn't establish clearly there's a causal link between those two things. And the incidence of challenge in them, the increase in the quality of local authority services, may be a spurious connection. It may be caused by other factors. But nonetheless, we felt that the finding is highly suggestive and somewhat unexpected. And in particular, we didn't see any evidence that an increase in challenge had diminished the quality of services. We would have expected to see that. We would have expected to see as a challenge increased, so the quality declined. We didn't find that. We didn't find that JR overall was diverting resources to the detriment of service provision. Now, a big question, of course, for us and for you, is why. What is happening here? Why is it that an increase in challenge appears to be leading to improved quality scores? Now, we didn't have the answer to that, but it's one that invites speculation and invites more work. In a paper we wrote, which is in the Journal of Public Administration Research and Theory, we came up with various theories about why this might be the case. In so far as judicial review, it may be assisting, it may be enabling reconsideration of service provision, the sort of experience we saw in the graffiti case, or in the beer case. It might be providing guidance, it might be keeping authorities on their toes. No sorts of factors might be explaining this, and it's certainly an area that we would welcome more work on. The second project, the dynamics of judicial review litigation, wasn't concerned with the effect of judicial review on public authorities. It was primarily concerned with the effect of judicial review litigation on the parties, how the parties themselves engage with the judicial review procedure. It threw light on the dynamics of litigation, in particular on the process of settlement. Very, very briefly, the findings are discussed in a bit more detail in the paper, we found 34% of the cases we looked at for 1449 cases were withdrawn prior to the permission stage. Prior to that, as it were, the first stage of the judicial review procedure. The vast majority of those cases were withdrawn because they were settled in favour of claimants. There are two particular factors we found that were significant in explaining why settlements were occurring and why they were occurring in favour of claimants. The substantive outcomes were in favour of claimants. The fact that the case of settling was obviously of benefit to the defendant public authorities as well, and to the courts, and to the taxpayer. There are two particular factors that affected the settlement process. One was the early involvement of defendant lawyers, lawyers in public authorities who were telling their officials, non-legal officials, that this case ought to be settled. There are, coming to look at the case, a fresh and advising settlement. A second point, very important, was the ability of the lawyers for the public authority to communicate with lawyers for claimants. That relationship is a very important relationship we found. Trust, knowledge, experience of the system is very important. This has an implication, of course, in the context of the recent cutbacks of legal aid. There is going to be an increase, there's already been an increase, there's going to be increased use or litigation by self-representing claimants. If what we found applies generally, it is likely to be the case that self-representing claimants are going to find it much more difficult to negotiate the settlement process. It may well be that the rate of settlement in favour of claimant declines. It may well be that there will be adverse consequences in terms of costs and time and bother for public authorities as a result of that process. I think this is something that hasn't been given adequate attention. Let me move on in the remaining few minutes to the final study that, on the effects of judicial review, this study picked up where the dynamic study ended. It looked at the effects of judgments, and in particular the effects of judgments on claimants. The paper sets out an explanation of our methods and some of the other findings, but I want to focus on one aspect here. That is the question, do claimants benefit when bodies reconsider their decisions following the judgment? This is a key question for judicial review lawyers. What happens when a public authority reconsiders its decision following a judgment? The hypothesis, widely held hypothesis, is that judicial review is an expensive and time-consuming detail to a given outcome. The widely held hypothesis is that following a successful judicial review, public authorities essentially make the same decision as they were going to make at this time, complying with the process requirements dictated by the courts. As Crick and McWilliam put it in their research in Australia, a successful judicial review would most likely be followed by an agency remaking the same decision through taking care to avoid the earlier legal error. That's been the prevailing hypothesis, so it's an issue of considerable practical importance and very important in the context of the government's reforms on judicial review at the moment. If it's true, it may well be that judicial review isn't worth the fuss and the bother and the expense, and maybe the government is justified in curtailing the process. The research in the United States and Australia, as many of you will know, that has looked at this, has found that judicial review has a substantive impact, as it were, on the outcomes of cases. Shook and Elliot, some years ago, found, for example, that a reminder of decisions back to US agencies resulted in what they called major changes in the petition's favour in 40% of cases. Crick and McWilliam, who I've just referred to, is found that in the context of the Australian federal court, in about 60% of cases where decisions were set aside, the applicant ultimately obtained a favourable outcome. And they concluded that the belief that after being successfully challenged in administrative bodies will routinely seek to remake their original decision has been disproved and said, if there is a built upon facts, then the value of judicial review when producing a favourable outcome to an applicant has been demonstrated. So they were quite bullish about the effects of their findings in the context of Australia, because we all know Peter Cain's reminders have become automatically applied findings from one jurisdiction to another. But this research project was an opportunity to look at this issue in the context of the United Kingdom. We looked at 198 cases and in 198 cases we found that the judicial outcome favoured claimants in 100 of those cases. In 43 of those cases the decision appears to have been quashed and there were known outcomes in 34 of those cases. It's strange how the figure 34 repeats itself. That's not a typo, that's true. There must be some sort of secret associated with 34. In only four of those cases was the ultimate outcome unfavourable to the claimant. So in 30 of the 34 cases where we had known outcomes, as to say, the end of the day, the public body made a fresh decision that favoured the claimant and the paper sets out particular examples of those outcomes. The main observations I think are as follows. First of all, in those cases judicial review enabled claimants to achieve a tangible substantive redress. They got a substantial benefit. It wouldn't have been achieved but for judicial review. Judicial review affected the substantive outcome. Its influence extended beyond process. Its influence wasn't purely symbolic. The evidence suggests that the public voice genuinely engaged with the judicial review decision. This wasn't just going through the motions. They didn't respond in ways that were wholly negative or purely ritualistic. And I think the findings fundamentally reinforced the importance of access to an inherent jurisdiction, a long-stop jurisdiction. The findings suggest, moreover, that the research undertaken in Australia may apply in England and Wales and possibly more so. And may reinforce further research, earlier research, that reminds us that we cannot take a monochromic image of judicial review as an institution that threatens public administration, is abused by claimants and which fails to provide a route to substantive redress. In short, clamping down on judicial review, real matter, both for claimants and possibly for public authorities. Thank you. We have a couple of microphones, so I think it starts off with Mark. If people could please say who they are. Mark Alley at University of Cambridge. I'm not sure if this is an observation or a question. It's inspired by Rick and Carol's paper. And I liked the distinction that you drew between strike back and clamp down. And just one thought which that prompted is how we should review those two phenomena and the extent to which we ought to distinguish between them. It seems to me that clamp down in the sense of trying to exclude or make it more difficult to seek judicial scrutiny, is highly constitutionally suspect and arguably depending on the system, constitutionally unacceptable. On the other hand, you might say that strike back is a less suspect practice in the sense that it can be seen as part of a kind of to and fro dialogue if you want to use that word between the court and the administration. So that was my first question. And then the second thought it prompted is how robust is the distinction between strike back and clamp down? Because I guess the risk is that if we have wide-scale use of strike back, then it sort of collapses into a de facto kind of clamp down. Well, I'll take it for the second, if you like, because it's been a subject of some argument between Carol and Rick about the robustness of this distinction. We started off with the idea just of striking back. But then perhaps influenced, as I was indicating, perhaps influenced by the theme of the conference. We thought that it was useful to focus down a bit more on clamping down. And I actually mean both points you're making. I certainly wouldn't want to suggest that there's a bright light distinction between the two. But I do think it is useful to be talking and to introduce both concepts. Because of the other point you made, Mark, which is that when you are talking about clamping down, the constitutional stakes immediately look much higher, right? And it does then raise this very interesting question in our system of parliamentary government that we clearly are in a situation where the government is wearing two hats. On the one hand it will be the arch repeat player litigant. And on the other hand it, well, it may have effective control of the parliamentary process. Though what I was trying to indicate was that I think that this is a very interesting area where the government has actually struggled to control the parliamentary process. They didn't manage it back in 2004. And already they've come under immense pressure in relation to their proposals on clamping down this time round. And, you know, both publicly sort of outside parliament and inside parliament. And I think it would be very interesting to see how far they actually get with us. I haven't much to add because we are more or less agreed on it. But I do think, firstly, the distinction, like most distinctions, is in no way robust and merely a distinction of convenience. The two things blend into each other. But secondly, I think both things can on occasion be highly suspect. And I read some of the Court of Human Rights cases on games played in other states in getting rid of litigation against the state, which seemed almost vengeful. And on the other hand, retrospective legislation can be, as Tony Process so many years ago said, quite justifiable. It's in the public interest maybe to save the taxpayer enormous sums of money. But we do think that there should be principles and that they should be good governance principles, transparency, debate, and possibly not too much fast track legislation. OK, thank you. Yes, we have a question here. Hi, Liz Fisher. On? Yeah, Liz Fisher from Oxford. First of all, a kind of question, comment from Morris, and then one that moves over and talking about striking back and clamping down. My question is, what is it that officials think they are responding to when they're responding to judicial review? Because it actually seems to me quite ambiguous. And let me use two very unscolarly anecdotes. One was a local planning officer who said, the law is interpreted this way because of a judgment. And I asked them to send me the judgment. And what I got was an anonymous case note of a planning inspector decision that they were treating as law. The second eye in the US talking to a US scholar and we were tearing our hair out at a case. And we were talking to an official in the relevant administrative agency. And he said quite naturally, I would never read this judgment without having the federal register next to me. So when we're talking about judicial review, that seems to me quite ambiguous. And I was wondering if you could comment on that. And that brings me back to striking back and clamping down. Isn't there also a question of opening up administration and saying that there may be different parts of the administration engaging and striking back? And again, I can think of examples where people were quite pleased that judicial review actions were brought against their own administrative body. Well, what do officials think they're responding to when they're responding to judicial review? Well, I suppose there's a number of different answers to that. In a particular case, in a particular instance, very often it depends on which officials you're speaking to. For the most part, officials are responding to an interpretation of the case that they are provided with, perhaps by their lawyer, if they're close to their lawyers, or by their senior management or by other aspects within the system. So there's a kind of process of interpretation that is going on within the system. And it is quite plausible to find within a large and complex public authority different interpretations of the same case being considered and debated, and indeed being argued for. And cases quite often be seen very differently within public authorities. So there isn't a single concept of judicial review or understanding of judicial review in that context. But the other issue is, well, are you talking about judicial review or are you talking about some other broader phenomena? Are you talking about a particular case or are you talking about the law or the courts? And quite often, I guess, when I've spoken to local public administrators, there are different conceptions. I mean, at one level, I remember doing some research where we were talking about judicial review and the officials we were talking to had no idea of judicial review. They claimed to have no nothing about judicial review. If you said, what is judicial review, I don't know. But they understood concepts like reasons and fairness and procedures. They understood that. They didn't necessarily associate it with judicial review. They associated with the sort of management system and the culture and the expectations within their authority. So the importance of inculcating within a management structure within a public authority is very important. The values of judicial review aren't necessarily those that are directly associated with what the courts are doing. And there are obviously variations on the themes. So my answer to that is, well, there's no single answer to that. You answer, or am I answer? Well, I think I haven't much to add except that we actually found cases where there was deliberate misinterpretation, promulgated amounts of staff to make sure that judicial review wasn't implemented and the home office, sets of home office cases illustrate that very well. So does earlier research on welfare cases. We don't do empirical research in the sense that Morris does. So we're always stuck with the written sources. But we would say that departments obviously differ in the way that they're structured and the new people who take the decisions and maybe whether they have legal services. I think that's a very wide question on which a great deal of empirical research would be needed of the sort that perhaps a patriot's done in respect of government departments. In relation to clamping down, I think it's quite interesting, isn't it, to compare David Blunkett's effort in 2004 with what Chris Grayling is doing now because clearly, as Home Secretary, that was very much centred on asylum and immigration, which brings back echoes of what we were talking about in relation to Australia yesterday. Though, of course, pause to observe that asylum and immigration has for many years actually been the chief subject matter of judicial review, so a huge chunk of it. But essentially it was geared, it was a home office-driven initiative. The current one, of course, is very interesting because this one goes across the board. Yes, it has particular variations in areas like planning, but essentially this is about attempting to reorder the judicial review process generally in terms of intervention, in terms of costs, and in terms of the particular provision which is still running about that permission to bring a case or a remedy may be refused, or a remedy may be refused if it is, and I've got it in front of me, highly likely that the outcome for the applicant would not have been substantially different. Of course, that bears directly on what do we mean by substantial difference. Now, as Maurice is indicating, from the litigants point of view, there may have been a substantial difference in those cases. From the administrators point of view, it may have been all fairly marginal and whatever, but the interest of the current one, I think, is that this is not departmentally driven in the sense of being geared to particular areas of administration. This is a generalized attempt to revamp, reorder the rules of the judicial review litigation. You've got a question here. Hi, I'm Tavina Cooper. This question for Carol and Richard. Have you looked at all the legal consciousness literature as a way of thinking about elite political players' response to judicial review? It's been used a bit by people like Dave Cowan in terms of thinking at the local government level, but it seems it might be quite a useful literature for thinking about the very different and complex ways in which law is understood, but not only understood, but also engaged with and practised by officials and politicians. I also wanted to ask Maurice whether you found a difference in terms of the effectiveness of judicial review in relation to very ideological kinds of cases and more mundane kind of everyday ones. Because you can imagine more ideological cases could go both ways, that local authorities dig in, or alternatively, that they want to show that they're responding because they're high profile cases. So I wondered if you had looked at whether there was a distinction. Okay, in relation to the first part, the answer is no for the purposes of this paper. That's not what we were into. We did, however, look at this at a much earlier point when we were doing pressure through law, and we were thinking about ripple effects and how you evaluate the success of pressure group litigation. There was some very interesting literature at that time in America that we were able to think about and reflect upon, but that's not what we're trying to do, isn't it? I think it's a very good question about the high profile, highly ideological, as you put it, cases, and what effect they have, as compared to the maximum routine on mundane cases, as it were. The beer case that I mentioned involving Hillingdon was in some ways a politically sensitive case. I wouldn't necessarily call it a highly ideological case, but it was a case that was brought by asylum-seeking children, in that particular instance. As we all know, asylum seekers do attract a particular political weight, and one of the reasons why that particular decision was important to Hillingdon and other local authorities in London, particularly around the Heathrow area, was that it directly affected political decisions or policy decisions that have been made within the council about how much resource to invest in providing services to asylum seekers. So, in one sense, it was a highly politically charged decision, and this was one reason why that particular judgment attracted so much attention, not only by that authority, but by other authorities. In the paper we talk about, the shock effect of judicial review, the shock effect of judicial review is not simply in terms of instrumental, direct instrumental consequences for the authority, but it's also in terms of the political priorities of the authority, and the need to somehow reconcile what the court is saying has to be done with their particular political objectives. Local authorities will have found that a very real challenge. Rebecca Williams-Oxford. I had a question for Professor Sunken. I was very interested in what you said about the specificity of justice mumby's instructions, if you like, and I wondered if that has implications for how we should go about doing administrative law, and I wondered is there a link between some of the negative or non-existent impact of JR and the fact that administrative lawyers are sort of taught to be very fluid and context sensitive and not draw hard and fast rules and not draw hard and fast distinctions or lay down concrete tests or any of this kind of thing, and should we maybe be a little bit less scared of doing that and a little bit more proactive in generating more specific rules that might then be able to be better guidance for administrators. Of course, that's very interesting questions. We're often told that these standards that the courts apply are reasonableness and fairness, are not very helpful for public administrators. I mean, they hide much more than they reveal and they beg all sorts of questions and local officials will say, well, what do we mean by fairness? Here we have, in the Caffinning case, a very different approach by the judge. I mean, of course, Munby was coming to judicial review not as a public lawyer in the traditional sense. He was coming as a family court judge and he knew the area very well and he took a very instrumental approach to his judgment and he gave very precise, very precise guidance as to how care plans should be conducted and undertaken and the local authorities saw those instructions as extremely helpful, not necessarily welcome, but they knew where they stood. So in that sense, but it's a big question. Do we want our judges to be instructing public authorities as to how to do their work and that tension between the court and the professional expertise is a key tension within the law. Can I add something to that? There's an alternative view in a case which I think is the Hercepton case in which the first instance judge, Mr Justice Beam, went into enormous detail about what ought to be done on hand, nice ought to carry out its drug investigations and was jumped on with six feet in the court of appeal. So I think I'd be quite interested to know what the Australian judges would take of that kind of guideline, take me. Just one more quick question. Thank you, poor diamond, humble barrister. I'm probably, that's not a contradiction term. I'm just trying to sort of, perhaps, introduce just a bit of practicality on the dress to carol on the sort of jewel playing by the government. I was involved in the case of Strasberg on the weighing of crosses. They got a lot of national publicity. We had a scene where the Prime Minister said he was going to introduce legislation to defend the cross. You may remember all of this. Meanwhile, they argued exactly the opposite in Strasberg and the Executive, not Parliament, has a great vested interest, as you know, in the United Kingdom is a major player in the Council of Europe. It's a major player in the Council of Ministers in the EU. It has tremendous influence and they like that influence. And I can tell you these courts have highly politicised in Strasberg. The conversations I had in Strasberg, I can't repeat here, but you have decisions like the Laotzi decision where a chamber of the European Court banned the cross from Italian or public Italian buildings. The Prime Minister of Italy simply says, no way, the Grand Chamber reverses. And there's this fluidness going on. And I can say that the British government is a big player over there. It was very difficult. Well, in a way, all I can say in answer to that is yes, but I'll just amplify it by saying we were well aware of it, but we had 10 minutes to present a very, very complicated argument. And I'm perfectly sure that happens not only in the Council of Europe and you get threats like the UK being president for the time being and saying we're going to reform the court and, you know, it's, I think, because we called it a game of ping-pong. We were aware of that, but it wasn't what we wanted to write about. I'd like to ask you to say thank you to our speakers.