Mishcon de Reya LLP has recently submitted responses to the Independent Review of Administrative Law Panel's (IRALP) call for evidence on judicial review and the Independent Human Rights Act Review Panel's call for evidence on the application of the Human Rights Act 1998 (the HRA). The Politics and Law Group made use of the Firm's significant data science expertise to rebut certain political assumptions upon which the calls for evidence seemed to be predicated.
Mishcon's Data Science team conducted the data analysis to support the Politics and Law Group in drafting the responses. The Data Science team work alongside MDRxTech, the Firm's award winning integrated team of data scientists, developers, consultants and lawyers that design and apply digital solutions for the world's most dynamic organisations. The Data Science team's analytical capability, combined with the Politics and Law Group's extensive experience in both judicial review and human rights law, enabled the Firm to produce unique and compelling responses to the two calls for evidence.
Surprisingly, two questions in the IRALP's call for evidence were only addressed to central Government departments. The questions focused on whether judicial review impedes the effective discharge of these departments' functions. The clear presumption behind this line of questioning is that judicial review claims are predominantly brought against central Government departments. Our data analysis proved this to be pure conjecture.
The Data Science team gathered a dataset of 27,739 cases from across the Queen's Bench Division, Court of Appeal and Supreme Court from 2010 onwards. From this dataset they were able to identify all judicial review cases that had reached the hearing stage of proceedings and were then able to derive that central Government departments were defendants in just 44.5% of all judicial review actions. The data allowed us to highlight that judicial review claims are brought against a broad set of public bodies and, therefore, to show that the Panel had been wrong to direct a whole line of questioning directly to central Government departments. It follows that, should the Panel make recommendations based upon the call for evidence as it stands, it runs the risk of failing to account for the views of a wide range of public bodies that are commonly the defendants in judicial review claims.
A large part of our response in relation to the HRA focused on declarations of incompatibility. Under section 4 of the HRA the UK Courts can issue a declaration of incompatibility if it is satisfied that the legislation is incompatible with a Convention right (as enshrined in Schedule 1 of the HRA). There is a common political narrative that European Convention rights are impinging upon British Parliamentary sovereignty. Our data analysis showed that this assertion is largely overstated. Since the HRA came into force in 2000, the courts have made only 39 declarations of incompatibility in cases originating in England and Wales. Of these, only 14 have caused Parliament to change the law. The data demonstrates the rarity of the court's use of section 4 of the HRA and assists us in rebutting the common political narrative that the UK is unnecessarily hampered by European laws or the judgments of the European Court of Human Rights.
The data has also shown us that declarations of incompatibility are most common in legislation that operates to safeguard vulnerable and minority groups, with the Mental Health Act 1983 being subject to the most. A clear concentration of declarations exists in a small number of statutes, with only 27 statutes having ever been subject to a declaration of incompatibility. In addition to the Mental Health Act 1983, the three other statutes that have received the most declarations are the Police Act 1997, the Criminal Justice Act 1991 and the British Nationality Act 1981. The data proves that only a very small number of statutes have been declared incompatible with Convention rights and that, in fewer than half of these instances, Parliament has had to re-legislate using primary or secondary legislation.
Our responses demonstrate that adopting a holistic approach to legal problems can provide a novel perspective with meaningful results. Mishcon's wealth of legal experience and targeted use of data analytics by the Data Science team has allowed us to shed a different light on assumed political truths.