Could judicial reviews be the best way to oppose local cuts?


by Sunny Hundal    
9:05 am - February 1st 2011

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A little-noticed piece of news from Friday could have huge implications for the battle against localised cuts.

A High Court judge quashed a decision by London Councils to cut £10m from their £26.4m grants scheme to voluntary organisations.

Mr Justice Calvert-Smith ruled that consultation process was flawed and that they had not met their statutory equality duties.

It’s worth remembering that the Fawcett Society went down a similar route not long ago (and scandalously lost), though the government admitted it had not bothered considering whether its cuts disproportionately affected women.

On Friday the Judge ordered a re-run of its consultation process with full equality impact assessments. That means there is still scope for such judicial reviews even though Fawcett Society lost.

Louise Whitfield, a solicitor at law firm Pierce Glynn who acted for the claimants, said:

This case establishes that even in the current economic climate, it remains of paramount importance that public sector funding cut decisions are properly assessed for their gender, disability and race equality impacts. If they are not, public sector funding cut decisions will be unlawful.

Whitfield said London Councils’ proposed cuts would have affected more than 200 voluntary and community sector organisations in London, and tens of thousands of Londoners.

London Councils is a cross-party organisation that is funded and run by London’s 32 London boroughs, the City of London, the Metropolitan Police Authority and the London Fire and Emergency Planning Authority.

So this is a huge decision.

According to news reports, the judicial review hearing comes to a conclusion, expected on Tuesday 1 February. Watch that date with interest.

[hat-tip: Clifford Singer at False Economy]

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About the author
Sunny Hundal is editor of LC. Also: on Twitter, at Pickled Politics and Guardian CIF.
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Story Filed Under: Blog ,Fight the cuts ,Local Government


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Reader comments


“The best way”?

No – but this could be one way of opposing cuts.

This is exactly where Labour councillors could come in, Sunny – quite a few of us have been writing for a while about the best hope for people being to find holes in council’s consultation and policy processes:

http://www.newleftproject.org/index.php/site/article_comments/a_journey_through_austerity_britain/

but they need support and help to do it. So many people aren’t even aware that judicial review is an option, and you’ll see from the article I’ve linked to above that the department for communities and local government is denying that consultation is an issue.

Could this be an initiative Labour decides to pursue nationwide – will the party give its local councillors a firm instruction or steer?

3. Chaise Guevara

” it remains of paramount importance that public sector funding cut decisions are properly assessed for their gender, disability and race equality impacts”

What does this mean in practice?

3 – it means this: “He ordered the group to re-run its consultation process with full equality impact assessments.”

And once these assessments have been done, the council can do precisely as it likes. It’s a requirement for consultation, not that the consultation must direct the actions of the council. If there are more than a few JRs on this point, I’d expect the Coalition to change the law – it derives from Harriet Harman’s ‘Socialism in one clause’ act passed just before the death of the Labour administration, so it’s not as if there’s a centuries-old constitutional principle at stake here.

I for one am uneasy at the thought of government spending decisions being subject to the whims of unelected judges. These are hardly civil liberties issues. Even those opposed to government cuts may be left wondering “wtf has this got to do with the judiciary?”

6. Chaise Guevara

@ 4

“It’s a requirement for consultation, not that the consultation must direct the actions of the council. ”

Oh, ok. So it’s just a way of checking the Is are dotted and the Ts are crossed. In that case this sort of thing might delay cuts but not “oppose” them as such. Although it might be an effective way of generating publicity.

5 Richard

Just because judges aren’t elected (and I think there would be a huge issue about moving toward a system where they were, yes?) does not ipso facto mean it is automatically a bad thing for them to intervene in this way.

If an elected body is trampling people’s rights, or failing to behave in accordance with consultation processes they are supposed to…. then what other recourse would you suggest?

I accept there may be issues around the ability of judges to intervene and/or over-rule elected representatives, but it’s difficult to hold that it is never necessary, or indeed that in some cases may be/have been a good thing.

This particular case may not be a civil liberties issue, but surely you aren’t suggesting those are the only types of issue where such action might be admissable?

What’s needed is a decent step-by-step guide to Judicial Review, and particularly to getting legal aid to pursue it. This (and the associated guides) is a decent start from the Public Law Project http://www.publiclawproject.org.uk/downloads/GuideToJRProc.pdf

This is something I’m trying to find time to look at more actively than I have done do far (in answer to Kate’s point @2 about the role of Labour cllrs, with which I agree). In light of the London Councils decision, I’d best shove it up my guilty pile in-tray, though I’d be interested in talking with other Labour cllrs looking at similar advocacy routes. It’s important to stress though that legal expertise is not generally within the skillset of councillors; I’m used to challenging my local Tories on their own constitutional shennanigans, but only within the constraints of the Council itself, and access to law is pretty much as big a mystery to me as to most people. Kate is right that Labour HQ might play a bigger role in this respect and i’ll do what I can lobbying on this point, in my own little way.

More broadly, I agree that this is an important resistance mechanism, but just one of a range (see also if you can be arsed my longish post on this at http://thoughcowardsflinch.com/2010/07/11/resisting-the-cuts-3-localism-legalities-loopholes-labour/ from ages ago.

This is not least because Tim J is right – this only secures a duty to assess impact etc., and may not defer cuts indefinitely (cf earlier cases in Portsmouth/Barnet on sheltered accommodation).

I think the Fawcett experience shows the uneven application of Judial Review; still, it is nice to know there is some recourse against government cuts even if you do not always win! The imminent cuts to the EMA grant show that the government have not fully consulted over the impact of these cuts on poor students. Asking a few well-to-do students in a linear poll whether they would stay in college if there were no EMA does not a consultation make. Good article.

@ 4

If there are more than a few JRs on this point, I’d expect the Coalition to change the law –

Yes…. people are calling for that already.

Richard,

I for one am uneasy at the thought of government spending decisions being subject to the whims of unelected judges. These are hardly civil liberties issues. Even those opposed to government cuts may be left wondering “wtf has this got to do with the judiciary?”

If the law says “thou shalt consult” and the organisation does not, it doesn’t seem unreasonable for there to be a process where the organisation can be made to do so.

“Judicial review is the procedure by which you can seek to challenge the decision, action or failure to act of a public body such as a government department or a local authority or other body exercising a public law function.”

Chaise,

Although it might be an effective way of generating publicity.

Trouble is that JR can cost a few tens of thousands of pounds, and the loser tends to pay the opposition’s costs as well.

12. Chaise Guevara

@ 9

Fawcett was demanding something ridiculous, though. Their campaign worked on the assumption that government policies should be perfectly weighted for fairness of impact. Ignoring the fact that this is probably impossible to measure independently and would absolutely cripple the government even if you could.

12 – also the chances of primary legislation (it was the Emergency Budget they were seeking to overturn) being over-ruled by judicial review are close to nil.

“This particular case may not be a civil liberties issue, but surely you aren’t suggesting those are the only types of issue where such action might be admissable?”

I suppose I just take the view that trying to use the judiciary as part of a political agenda to slow down and frustrate government cuts is an abuse of the system. Furthermore as highlighted above the government is simple likely to change the law and push on. All that will have been achieved is minor delays and public money spent on ultimately futile judicial reviews. As TimJ points about above, this situation is a result of recent legislation (which is just as ideological as the cuts are) rather than some ancient constitutional principle.

@Paul Cotterill – cheers for that, Paul.

As I’ve gone round, I’ve been drawing people’s attention to the possible inroads to be made via the consultation route into cuts decisions. I’m pretty sure a lawyer made similar inroads on Shropshire council’s decision to close the Grange centre for people with disabilities. Nicky Clark will know more about this, so I’ll tweet her this and see if she can expand on it.

The point about Labour getting involved – this is just an example of a practicality that could be useful in helping people delay decisions while they continue to lobby councillors, look for alternate sources of funding and provision and so on. Tim J is right when he says that reviews mainly serve a delaying purpose – but there can be advantages to that. If councils have to consult properly with people and integrate their input into decision-making, better decisions that are still cost-effective may be arrived at. Right now, the government is trying to rush these changes through. It’s all a lot harder to claw back after the event and Osborne and Pickles know that. They pressured councils into in-year savings right out of the blocks last year and reduced grants for this year are of course about to be paid.

I also understand that there have been successes with challenges to processes – a year or two ago, a group of sheltered housing tenants in Barnet took the council to court over a failure to consult on a decision to remove housing wardens, and won a useful reprieve (I don’t have all the details to hand, but someone may know more. I think the council is pursuing the same policy now as part of its austerity drive). I understand that West Lancs Tories got a hiding from the audit commission last year on housing provision and one of the areas for censure was the complete failure to engage with user groups and/or integrate their input. You’ll know about that better than I, but apparently those Tories have been particularly remiss on consultation.

I think the point is that council is procedural. Protests, lobbying, publicity and public opinion are very important, but you really make inroads when you can pull some of these guys on procedure and their own locally-negotiated agreements. As you and I both know too well, it’s all about reading local constitutions, pulling ruling groups up on their own key decision regulations and failure or otherwise to identify key decisions in forward plans and so on. The fine print of Compact agreements and other locally-negotiated partnership agreements become very relevant here. The fine print of EU tendering law will also be good to know when the time comes for big private sector contracts, which it inevitably will. The point I was making was that Labour could play a big role in helping people negotiate some of this stuff and may even be able to fund a couple of lawyers who could provide information on a site or something. It’d be great to be able to direct people to a site like that.

It’s worth being aware of the consequences of these decisions.

In this case, many London boroughs had ringfenced the money from London Councils for voluntary groups which were facing cuts in their borough.

So what will happen is that there will be bigger cuts to local voluntary and community groups as of 1st April, the EIAs will be done over the next few months, and then the money will be returned to local councils. So overall cuts are exactly the same, it is just that some groups benefit at the expense of others.

I wonder if there’s any mileage in using this approach to challenge the pupil premium mechanism, which directs funding towards schools where take-up of free school meals is higher (regardless of whether *eligibility* for free school meals/deprivation among pupils is higher) – the equality issue here being that some schools with a predominantly White British intake seem to have higher take-up rates than similar schools with a high proportion of pupils from ethnic minorities. I know of one very deprived Bradford primary that is expecting to see almost £200,000 of next year’s budget siphoned off to other local schools that are whiter but no more deprived.

Anyone relying on the Labour Party to do anything needs their bumps felt …

Don,

Could you explain that in a bit more detail – not being a smartarse, but I didn’t get it. Is it that there is extracurricular London Councils money which has been protected by a ringfence and will be distributed while cuts go through regardless? Interested to know.

20. Lisa Ansell

Across the country right now- there are hundreds and thousands of teams of professionals, workers, people affected- who have detailed understanding of how the cuts are being implemented, and are looking at all tools available to them. Judicial review is one type of legal challenge, there are many more- and those who understand the law, the way the cuts have been constructed and have detailed knowledge of how and why decisions will shape services and how to challenge them-are acting.

No- judicial reviews are not the best way of fighting cuts. They are one tool- and the legal challenges which will follow in the next few months are not ‘little noticed’. They are being widely discussed and shared- outside the core political blogs- by people for whom this is not a ‘movement’ or a protest- but real action to figure out how to fight for their departments, services and professions.

THere will be small actions, and large scale actions- and use of consultation excercises and pressure on local decision making chains.

What might be the ‘best’ way of our new ‘movement’ in fighting the cuts- is if our core political blogs, publications, and activists who are protesting and want to support that fight as part of their ‘movement’- were to work to look outside Westminster to those who are fighting the cuts that affect them- and offer the resources they have to those who are likely to have fairly detailed understanding of what is happening- and offer to share resources with those people- to help amplify their voices and share their strategies for fighting to protect their departments. Including the legal challenges which will be brought over the next months. Rather than racking their brains to find the best way of ‘fighting’ the cuts- with scant understanding of social policy or the law in relation to it.

THere are many places that these voices can be found, from local anti-cuts meetings- to professional forums, discussion arenas, local teams, blogs concerned with social policy rather than Westminster politics- professional associations, trade publications, local networks.

The Fawcett Society were able to bring a legal challenge-however unsuccessful- because they understood the detail of the law in relation to one issue- and it was this that formed the basis of their challenge. The same will be true across the country and will be the source of many challenges to decision making, from judicial review, to utilisation of local policy to challenge cuts.

The fight against the cuts is a complex one-one where everyone involved will have something to bring to it.

Of course not all those people will see the core political blogs, as important- or Labour to be part of the solution- so the question is- can those who believe themselves to be leading the charge- support them, and offer the resources they have to help amplify those voices- without shouting them down when they contradict the new ‘left’ orthodoxy who have decided that cuts are an opportunity to rejuvinate the left and Labour party.

Hi Kate,

“Could you explain that in a bit more detail – not being a smartarse, but I didn’t get it. Is it that there is extracurricular London Councils money which has been protected by a ringfence and will be distributed while cuts go through regardless?”

Sure – at present every London borough pays London Councils a certain amount of money (approx between £500,000 and £1 million per borough). This is used for grants to voluntary groups working across London.

The decision was taken to send most of this money back to the councils. So instead of paying, say, £700,000 to London Councils, the council where I live chose to use that money to increase the amount which local voluntary groups received in grants (making up for cuts elsewhere in the grants budget). The result of the judicial review will be, therefore, an extra £700,000 cut to local voluntary groups in my borough.

Some other councils chose to use the money to reduce cuts in their own services, so that the result will be that more council workers lose their jobs, libraries close etc.

In other words, this is not a very good way of opposing local cuts, because it just shuffles the cuts around so that local groups and council workers get greater cuts and London-wide groups get lower cuts.

And overall the result of judicial review is less money for socially useful activities, because some of London Councils’ money gets spent on lawyers instead of voluntary groups.

22. Laughing Gravy

I do not see how, at the end of the day, these various tactics do much good. They do not stop cuts happening. They postpone cuts falling on an activity until proper process has been followed (but at a cost), or they divert the cuts to some other activity which bears them instead. Either way cuts still happen.

@21 Many thanks :)

24. Nathaniel Mathews

“Just because judges aren’t elected (and I think there would be a huge issue about moving toward a system where they were, yes?) does not ipso facto mean it is automatically a bad thing for them to intervene in this way.”

Au contraire. Michael Howard obviously thinks it’s a bad thing for judges to intervene through JR’s because when he was Home Secretary he lost a bucketful of cases. Having independent judges holding ministers to account for example is a crucial counterbalance.

There will certainly be JR’s of all sorts, but my feeling is that broadly speaking they will mostly fail, because while a strong independent judiciary is important, Judges will recognise that broad funding decisions are ultimately for the politicians. But it will clog things up a bit.

@17 GO

Yes – there could well be mileage in this approach as per the case you describe. The legal precedent is probably Kaur v London Borough of Ealing in 2008, where Lord Justice Moses ruled that Ealing Council had failed to implement the race equality duty (http://www.publiclawproject.org.uk/documents/KaurandShahvLondonBoroughofEaling.pdf). Ealing had intended to cut funding to the Southall Black Sisters for a specialist BEM domestic violence service, but did not conduct a race equality impact assessment at the right point in their decision-making process. You can find the revised assessment document on Ealing’s website. Consultation with ethnic minority interest groups is a key part of the race equality impact assessment, btw. IIRC, education services in Bradford are outsourced to Serco? Serco still have to uphold the equality duties though, as they receive public funds to deliver a public service.

Fawcett lost their case because the public sector duty with regard to gender impact assessment is less clear than the race equality duty. The EHRC have some guidance on their website about impact assessment & financial decision-making (http://www.equalityhumanrights.com/uploaded_files/PSD/31_psdandfinancialdecisions.pdf)

The new public sector duty under the Equality Act 2010 comes into force on 6 April 2011 so the requirements change slighlty from that date. Again, the EHRC has published guidance on this.

26. Robin Levett

@Don #21:

A slight correction, if I may: the overall budget cut, although challenged, was not quashed. What was quashed was the individual allocation decisions.

This means that the individual councils will have the cash they expected to have; but the projects funded by London Councils can expect a possible redistribution of the pain.

The SoS’s equalities duties were argued in the BSF JR; we shall see how that plays out.

Want to share some depressing lessons we have learnt over the last 4-yrs.

We challenged the integrity of a service user consultation using local authority’s Statutory Complaints process. First investigation was a Whitewash & the 2nd delivered a damming report with a long list of recommendations.

Supposedly those recommendations implemented, the council conducted another consultation late last summer. Made a slightly different but just as big a mess of it all – it was a farce. It now turns out that “consultations are a legal requirement, not a thoughtful gesture” which lead to good, sustainable decisions.

So we filed a complaint with Local Government Ombudsman service. They immediately waved health warnings – they can make recommendations & councils can ignore them; that the LGO have no legal powers to make councils do anything. So at best they can embarrass the council into re-running the consultation (whoopee!!).

Lesson 1: Bottom-line is that all of these challenges are about processes and procedures – it has no direct or indirect impact on the quality of decisions made. Chances are that once a decision is made; delay and short term embarrassment is all that can be achieved.

In our case seems that with the embarrassment at the highest level, massive egos have been bruised and they are even more determined than ever to see their original decisions through.

Early signs are that a Judicial Review will not deal with the nub of the problem – i.e. does the council have a handle on relative priorities and pressure points; understand complexities of the risks inherent in their decisions and is it making well informed objective decisions. If not, then what?

A conundrum – how do councillor who has never commercially managed a £50k budget suddenly become a portfolio holder in the local authority Executive or Cabinet and become responsible for making decisions involving a 100s-million £ budget? If they applied for a similar job in the private/public sector would they even get through the CV sieving process?

Lesson 2: In essence senior civil service officers (i.e. none elected bods) are ruling the country!

Soon after the election the new council administration put in a demand for technology refresh for all councillors (all now have a Blackberry/iPhone); the chief exec earns more than PM; spending 100s of millions on a new civic centre and hacking frontline services. Go figure that!

28. Robin Levett

@mk #27:

Sorry, but this is a major peeve, and a Tory meme that has no place (because of its inaccuracy) in the debate:

“the chief exec earns more than PM”

The PM is underpaid (even looking at his complete package) for the level of responsibility he has. That is because no recent government has had the guts to implement the recommendations of the various review bodies, leading to MPs (also underpaid) making up their pay on expenses claims; that is why we ended up with the MP expenses scandal. Even having said that, pretty much no local government officer earns anything close to the PM’s package.

Even ignoring the PM’s prospective lecture circuit/consultancy/freelance peacemaker earnings on retirement:

1. The PM’s actual salary entitlement (despite not implementing the review recommendations) is *not* the c£150k often quoted; it is a tad short of £200k (a little over £132k as PM, plus his MP salary) – which takes out the majority of Council Chief Execs said to “earn more than the PM”. Successive PMs have, for political reasons (and because it doesn’t really make a lot of difference to the overall package, as we shall see) chosen not to draw their full entitlement.

In addition to the salary the PM’s package includes free:

2. Accommodation for himself and his family in a desirable location in the centre of London;

3. Access to a luxurious country retreat;

4. Personal chauffeur-driven limousine;

5. Personal protection;

etc etc – none of which comes cheap.

On retirement he gets:

6. A lifetime pension payable immediately on leaving office (whatever his age) of one-half his actual PM salary (currently £132k) at that point, uprated as the PM’s salary increases; this pension continues payable even if the PM remains an MP, and only ceases to be payable in the event he regains ministerial office;

7. If he leaves his contributions in the fund, participation in the MP’s pension scheme – which is considerably more generous than the LGPS per £ of salary;

8. A Public Duty Costs Allowance (currently £90,854 pa) again payable immediately upon leaving office and for life.

Remember that if by some chance Mr Cameron left office tomorrow, after less than a year in office, he still gets 6 and 8 in full. What would you pay for a lifetime pension of £150k, uprated with PM salary, payable from age 45?

# 28

thank you – that is quite insightful and acknowledge that I don’t have the full picture.

I should have made clear though that I was actually just talking about the basic salary (in this instance £205k/year). 2ndly, there is very little comparison between a PM and a CE role in terms of scope of responsibilities. My comparison was more to do with the weight of responsibilities of the 2 roles rather than direct benchmarking.

In anycase, this bit of my contribution was more to do with feeling of complete helplessness and expression of shear frustration of dealing with it all.

Having got that out of my system (should have left it in!), I would like to focus on the main trust of my contribution which is .. can any of us actually do anything with regard to cuts in frontline services.


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