Angered by the imposition of a new NHS contract, a few days ago group of junior doctors took their fight from the picket lines to the internet.
Dr Nadia Masood, an anaesthetics registrar, and three others wanted to mount a judicial review to challenge the contract, but needed money to pay for it. Within three days they had raised £85,000 on the crowdfunding website CrowdJustice, set up by Julia Salasky, a former Linklaters lawyer.
Judicial reviews are a key way of challenging the legality of government policy in the courts. And crowdfunding — where the public is invited to contribute small amounts of money towards a legal challenge — is an increasingly popular way of getting such cases off the ground.
“This contract is a public issue and affects everyone,” says Dr Masood, 35, who has been a doctor for 11 years. “If we were not able to use crowdfunding we would not be able to do this. We cannot stand by without a proper review of the impact on patient safety of such action.”
The ability of crowdfunding platforms to unlock sources of funding for judicial reviews has not gone unnoticed, with some politicians complaining at the number of challenges being mounted.
Chris Grayling, the former justice secretary, once complained that a minister was confronted by a judicial review challenge “virtually every week of the year” and told a House of Lords committee two years ago that judicial review was in danger of being used as “ a tactical tool” and a “political campaigning tool” to bypass the political process.
Some departments say they have seen a dramatic rise, notably the Ministry of Defence, which faces nearly 1,500 judicial reviews relating to operations in Iraq and nearly 40 on Afghanistan cases.
The number of applications certainly appears to be rising. In 1974, there were 160; by 1998 there were more than 4,500; and by 2012 the number had reached 12,400.
The main driver has been the jump in challenges to immigration and asylum cases. In 2012, some 82 per cent of all judicial reviews filed in that year — or 9,868 out of 12,434 — involved immigration and asylum cases, according to research published by the Public Law Project and conducted by academics at the LSE and University of Essex.
Since late 2013, however, most of the immigration cases have moved from the High Court to the Upper Tribunal, so the numbers of ordinary judicial reviews have remained fairly constant at 2,000 a year. A new planning court has also taken some cases out of the High Court.
In addition, the road to court is often a long one: some judicial review challenges are withdrawn, settled or rejected before they get anywhere near the courtroom. In 2012 only one in six cases was granted permission to proceed, according to the Public Law Project study, while government figures show a large proportion of applications — 40 per cent in 2012 — are withdrawn or settled pre-trial.
Advocates of judicial review say such challenges are important for democracy as they hold government policy to account and expose errors of law and abuses of power. The previous government looked at ways of curbing them but decided not to proceed after strong objections from lawyers.
Companies are also increasingly considering judicial review challenges. Charles Brasted, partner in Hogan Lovells’ UK and EU public law and policy practice, said: “Many businesses now consider judicial review as very much a part of how they manage their relationships with government and the regulatory environment in which they operate.
“With the growth in regulation across many sectors, businesses have to engage with policymakers more than ever, and judicial review is a key tool in holding them to account and achieving policy change.”
Nonetheless, it is extremely rare for a claimant to win against the government in the High Court. Only 1 per cent of all judicial review cases lodged in 2014 ended with that court finding in favour of the party bringing the case.
Even winning does not mean a policy will be scrapped, but rather that it will be reworked. “Judicial reviews can be used politically to put pressure on the government,” said David Greene, senior partner at law firm Edwin Coe. “The problem is that even when these challenges succeed, the judge has no power to set aside the policy. The government just has to go away and reformulate [it].”
Maurice Sunkin, professor of public law at the University of Essex, said the government had exaggerated the use of judicial review. When compared with the huge numbers of decisions made each year by public bodies, the number was “infinitesimal”, he said.
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