Judicially reviewed

A more imposing location for decision making than a council chamber?

It sometimes feels like established society is collapsing around our ears.

First the bankers did their best to destroy the financial system (with a worthy assist from the general public it must be said); then the politicians decided to abuse their expenses and finally the press and police conspired together to take the award for the 2011 abuse of power of the year.

The one group who have survived relatively unscathed from this attack of societal self-destruction have been our judges.

Despite the judiciary being about as representative of the British population as a bulldog is of the canine race our judges occupy an almost rarefied position in society. As an example, no matter what the crisis the general response of the British public, press and politicians is to demand an independent judicial enquiry, or for a particularly egregious breach of trust an independent public enquiry chaired by a judge.

This love of the judiciary is possibly the last recourse of a society let down by our other elites, and also by a society that is less than trusting of our politicians.

As goes society so goes Local Government.

Over the past few months members of the public have been petitioning the courts in untold numbers to try and reverse decisions made by their local authorities. This has been the case about possible library closures and, home care services and significantly wider cuts to Adult Social Care amongst many others.

I don’t necessarily disagree with the causes of these campaigners.

However, I can’t help but think that changing these decisions through the courts rather than through the local democratic process is simply not right.

Too many of these judicial reviews seem to be decided on the basis that councils have not followed the right process rather than because the local authorities are breaking the substance of any law (I recognise that by not following the process they are breaking the law but bear with me). Even the ‘famous’ review in Gloucestershire County Council regarding their libraries was challenged on the basis that it broke equalities legislation and that a proper process of consultation had not been followed; alongside the more well known challenge regarding the 1964 Libraries Act.

This just seems wrong to me.

Surely, these, extremely tough, decisions should be made by the politicians who were elected to make them and not by our unelected judges.

The arguments in favour of judicial reviews is that they prevent politicians making irrational or unlawful decisions. But in these circumstances is there really such a thing as a rational decision?

Who is to say that closing down a library or shutting a children’s centre when the alternatives are closing parks or making large(r) cuts in Adult Social Care or Children’s social work is irrational or contextually unlawful?

Unless judges are going to sit down in the council chamber, read through the budget in detail, assess the political and service impact of the budgets and then match that with long term corporate priorities and the desires of the local population who elected those decision makers, how on earth do they know what is the right decision or what is not?

The court in the Birmingham social care case employed an accountant who ‘proved’ that they could have made a different decision. But why is the court deciding that they should have?

Plus, if the decision is so irrational maybe the same judgement should be passed on the budget settlement agreed by central Government that led to the cuts?

But this is part of the game: the exact nature of an irrational or unlawful decision is constantly left ill-defined or based on vague definitions (comprehensive service anyone?). The politicians who could define what is legal and not legal prefer to leave these decisions to the courts.

What do central Government have to gain by telling local government what is acceptable when making deep cuts to adult social care or when considering shutting libraries? The cuts could then be blamed on the national decision makers rather than local politicians.

There’s nothing to be gained so local councils and the courts are left in a little dance with the public seeing the courts as the last recourse when they are dissatisfied with their politician’s decisions.

This is simply wrong and an inappropriate use of our judicial system.

The equalities and disability discrimination acts which these decisions are sometimes based are well intentioned and have done a lot of good, in my opinion, but this just doesn’t feel right.

If you are a member of the public and you don’t like a decision made by your local council then vote for a different party. And if you think that the decisions are being made by politicians at national level then vote for a different party in Westminster.

Relying on the courts might protect your local services today but it won’t do our body politic any favours, now or over the long term.

Welovelocalgovernment is a blog written by UK local government officers. If you have a piece you’d like to submit or any comments you’d like to make please drop us a line at: welovelocalgovernment@gmail.com

Explore posts in the same categories: Big P Politics, The future of Local Govt

Tags: , , , , ,

You can comment below, or link to this permanent URL from your own site.

12 Comments on “Judicially reviewed”

  1. Will Says:

    Democratic accountability (i.e. you vote them out if you don’t like them) only goes so far. You only get a chance to vote in you local representative councillor every 4 years and then you don’t have a direct say in who gets to be leader or sit in the executive. So you really only have an indirect say every 4 years on policy. People should be able to JR decisions where processes have not been followed. Part of making a reasoned decision (and therefore a lawful one) is to consider all the evidence. You can’t do that if you haven’t given the public and other stakeholders enough time to submit their views. However I do agree with you point that by devolving the cuts to local government councils are now stuck between a rock (legal obligations to provide comprehensive services) and a hard place (not enough money or time to change service design).

  2. Ed Hammond Says:

    Personally, I have no problem with JR being used for these purposes. If Acts of Parliament (such as the Equalities Act) are to be enforceable, and enforced, then JRs on the basis of a council’s lack of a correct process, in a given case, for conducting an equality impact assessment strikes me as falling well inside the remit for judicial review.

    Judges don’t seek to second-guess council decision-making, which is why we don’t (and can’t) have merits-based judicial review. The bar for irrationality/unreasonableness is extremely high – the oft-used description being “a decision outrageous in its defiance of logic and accepted moral standards” (which is not the currently used definition, but which is pithy and gives you an idea of the level we’re talking about here.

    I don’t know about the Birmingham JR in depth, but the judgment would have been reached on this basis, on the back of nearly seventy years of case law looking at “unreasonableness” (most of which, as you might expect, seems to relate to the activity of local authorities).

    The definition of unreasonable, or illegal, in individual cases will always be uncertain, which is why we have courts and a judicial system. Parliament / Government can never specify in all cases when something will, or won’t, be legal. All possible circumstances cannot be planned for.

    I do agree though that recourse to JR can potentially have knock on effects (eg the abolition of the GLC, brought about in part by the action against them by LB Bromley as a result of the Fare’s Fair policy). But this perhaps should provide salutory warning to authorities to conduct their business in such a way that a successful JR will be less likely.

    I also completely understand the frustration that authorities will experience as and when JRs throw colossal spanners into carefully constructed budget arrangements but political exigency and what (locally-elected) politicians may wish to do – even if most people agree it’s the right decision – doesn’t, and shouldn’t, trump the rule of law. The courts are just as much a part of our democratic society as our popularly-elected institutions, and should not be subordinated to their interests.

  3. LG Worker Says:

    Aren’t the JRs being used to ensure these difficulty decisions are made in a lawful way (very important. Even when cutting, the law shuld be followed), not to make the decisions themselves?

  4. Performance officer Says:

    Isn’t the point that campaigners who resort to the courts are (usually) making a wider argument about the rightness of the changes to the service and how that could be better done and the judicial review they end up using judges on the process?

    Obviously the process needs to be right, but by using the reviews as the ‘ultimate’ arbiter, the other points of the campaign almost get lost. For example the councils feel they ‘just’ need to do it again and get the process right rather than change just what they’re implementing.

    That doesn’t really answer the other point – the hole in (local) democracy where you get a vote once every four/five years and in between have very little power and only some influence to change decisions that take place on a shorter timescale. And what the answer to that conundrum is, I simply haven’t a clue. But I don’t think it’s judicial reviews that aren’t about the central issues.

  5. Ed Hammond Says:

    Well, the answer to that conundrum is obviously an effective and high-quality overview and scrutiny function!!


    No, it really is.

  6. Will Says:

    btw the picture of the court room just looks like Bristol City Council’s chamber (I don’t work there I should clarify).

  7. Jeremiah Says:

    Performance Officer is right of course. People resort to the courts because they think the decision was wrong. Nobody cares that much if they agree with your decision but think you’ve used the wrong process to make it.

    But then, requirements about process should only be there because the process should make a difference to the decision. Requirements about consultation, considering equalities etc. are there to provide people with a voice and a measure of influence in between elections.

    So the real problem is that these process requirements usually get treated as a tick-box exercise – whether before or after a judicial review – a ritual that you have to go through but that’s not really going to be allowed to have the effect that its creators intended.

  8. Will Says:

    Interesting article here showing how a council made some difficult decisions but through following the proper processes was successful in defending a Judicial Review.


    • That’s a really interesting case… Admittedly changing FACS from moderate to serious and critical has been done in most places already but the comment from the judge was instructive:

      “Whether or not the mitigating steps were adequate was a matter for the council to determine,” the judge said. “The fact that the council did direct its mind towards the question of what mitigating steps could be taken so as to lessen the impact of the relevant policies on affected users demonstrates that the council did in fact have due regard to the matters specified in the DDA.”

      I very much welcome his interpretation of the law there.

      Thanks for the link!

  9. Thanks to everyone for their comments. I like the fact that so many excellent and well thought through points have been made. I’m yet to be convinced about the validity of the JRs but everyone has done a good job of putting the other side of what was an intentionally provocative piece…

    Cheers all

  10. […] And let us not forget that if the equalities issues are not considered a local authority could find itself facing a judicial review. […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: