The JR challenge

The widespread use of judicial review – rather than the local democratic process – to challenge local authority decision-making just isn't right, argues the We Love Local Government Blog.

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 inquiry, or for a particularly egregious breach of trust an independent public inquiry 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, 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. To get in touch, contact: This email address is being protected from spambots. You need JavaScript enabled to view it..