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Challenging the Cuts: Lessons Learned from Cases in Great Britain

This article discusses the experience and lessons learned from cases challenging budget cuts in Great Britain, including the process of judicial review, commonly used grounds for review, arguments based on the public sector equality duty and consultation challenges. It also explores the role of NGOs in bringing these cases and the potential advantages and pitfalls they face.

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Challenging the Cuts: Lessons Learned from Cases in Great Britain

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  1. CHALLENGING THE CUTS: THE EXPERIENCE AND LESSONS LEARNT FROM CASES IN GREAT BRITAINLouise WhitfieldPierce Glynn2 March 2012

  2. CUTS LITIGATION: an outline • How judicial review works • Commonly used grounds of judicial review • Equality duty arguments • Consultation challenges • Allocation of resources • NGOs bringing cases: potential and pitfalls

  3. HOW JUDICIAL REVIEW WORKS • Public bodies must act fairly and lawfully and meet the public sector equality duty • If they fail to do so, you can bring a JR • If you win legal arguments, judge may quash decision and public body must re-take it (so you could win the battle, but lose the war) • JR is about process, not merits • Remedy is discretionary (e.g. tuition fees case) • Remedy of last resort • Must act promptly, within three months

  4. EXAMPLES OF CUTS CASES IN GB • Challenges to reducing availability of care to disabled people/introducing charging • Closing libraries • Removing funding from voluntary sector organisations • Building schools • Supporting people budget allocations • The entire UK budget

  5. COMMONLY USED JR GROUNDS • Fair process: right to a fair hearing, disclosure, transparency, criteria, set procedures, opportunity to make representations, reasons • Consultation: at formative stage, enough info/reasons for intelligent response, sufficient time to comment, conscientiously taking results into account • Public sector equality duty: statutory duty to have due regard to specific needs

  6. PUBLIC SECTOR EQUALITY DUTY • No alternative remedy in GB of statutory complaints procedure • Some robust judgments (being slightly eroded now) re: • Timing of meeting PSED/ongoing duty • With rigour and in substance • Evidence-based and accurate evidence • Decision-makers must have materials • Importance of consultation with protected groups

  7. CONSULTATION CASES • Overlap with PSED cases (duty to consult to assess impact: R(Hajrula) v London Councils) • Narrow consultation points/fair process (e.g. BSF case: failure to consult schools losing money) • Consultation too late (home closure cases in 2009), not at formative stage so no open mind • Not enough information to comment in a meaningful way (R (Capenhurst) v Leicester CC)

  8. RESOURCES • Public bodies can take resources into account • Unhelpful cases about disabled people’s services (see e.g. R (Macdonald) v Kensington & Chelsea, but recently reconsidered by SC in KM v Cambs – judgment awaited) • But resources can’t trump PSED (see e.g. R (Hajrula) v London Councils): in fact must be more careful when resources scarce • Decisions must still be rational and meet basic public law principles

  9. NGOs BRINGING CASES: PART 1 • Main problem of costs liability if you lose: • You need to be very rich, or get a protective costs order (assuming you can find lawyers to act pro bono or on a no win-no fee agreement) • Service-users can use legal aid to bring claims as long as they meet cost-benefit test for legal aid or there is “sufficient wider public interest”, but you risk abuse of process arguments

  10. NGOs BRINGING CASES: PART 2 • Potential advantages: • Threat of litigation can be enough • Use legal arguments to lobby • Litigation is only one weapon in your armoury/make it part of a wider campaign • But you need to play the long game • Pitfalls: • NGOs with different agendas • Time-consuming and stressful • Staff and management might disagree on strategy

  11. IS IT WORTH IT? • Winning: • Funders invariably crack when making new decision (and miraculously find more money); • Better decision-making in future; • Empowerment of disadvantaged groups • Losing: • Frightening the opposition anyway • Being heard/being taken more seriously in future • Campaign nuggets: “the object of this exercise was the sacrifice of free home care on the altar of a council tax reduction for which there was no legal requirement” (R (Domb) v Hammersmith & Fulham)

  12. CHALLENGING THE CUTS: THE EXPERIENCE AND LESSONS LEARNT FROM CASES IN GREAT BRITAINLouise WhitfieldPierce Glynn2 March 2012

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