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CHALLENGING THE CUTS: THE EXPERIENCE AND LESSONS LEARNT FROM CASES IN GREAT BRITAIN Louise Whitfield Pierce Glynn 2 Ma

CHALLENGING THE CUTS: THE EXPERIENCE AND LESSONS LEARNT FROM CASES IN GREAT BRITAIN Louise Whitfield Pierce Glynn 2 March 2012 . CUTS LITIGATION: an outline. How judicial review works Commonly used grounds of judicial review Equality duty arguments Consultation challenges

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CHALLENGING THE CUTS: THE EXPERIENCE AND LESSONS LEARNT FROM CASES IN GREAT BRITAIN Louise Whitfield Pierce Glynn 2 Ma

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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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