Challenges to ‘austerity’ cuts

The first was Draper v Lincolnshire County Council [2014] EWHC 2388 (Admin) in July 2014, where Collins J found that because of defects in the consultation process (in particular that the council had rejected an expression of interest from Greenwich Leisure Ltd as falling outside the scope of its consultation), the council’s decision to reconfigure library services should be quashed. However, Collins J said that if the consultation had been the only ground he might not have granted relief: ‘The manner in which GLL’s proposals were dealt with coupled with the view that they did not fall within the consultation exercise persuade me that the decision must be quashed.’

In his view the council had to reconsider the issue. As to the process, although this was a matter for the council, Collins J said the most sensible way forward may be ‘to obtain the necessary further details from GLL and perhaps consult further for a shorter period on whether any overall alternative proposal is forthcoming’.

The second challenge was to this subsequent short consultation exercise. It was determined in the council’s favour by Mrs Justice McGowan on 22 October in Draper v Lincolnshire Council [2015] EWHC 2964 (Admin). The grounds of challenge were summarised by the court as follows:

l That the second consultation was also flawed, in that it failed adequately to deal with any alternative proposals;

l That the procurement exercise, following the acceptance of the expression of interest from GLL, was flawed in that it failed to meet the requirements of section 83(2) of the Localism Act 2011;

l That in taking the decision the defendant failed to meet the ‘best value’ duty imposed by section 3 of the Local Government Act 1999 and/or the decision-making process was irrational in the Wednesbury sense.

As to the first ground, the claimant contended that the consultation ‘was flawed in that it did not meet the requirement to deal with specific or general alternatives’. Furthermore, ‘it did not provide the required level of information about the GLL proposal or any other prospect of outsourcing within the consultation document’. It  was also argued that this consultation was governed by section 3 of the Local Government Act 1999, which requires consultation in general terms and is not simply an invitation to comment on the defendant’s favoured scheme.

However, the court considered that while any such consultation ‘must achieve an acceptable minimum standard’, it is nevertheless ‘not a counsel of perfection’. In the view of McGowan J, the consultation in question together with ‘the links provided and in conjunction with the earlier material’ did achieve that standard. But in any event ‘the challenge on this ground was not brought in a timely manner’. For if ‘the claimant was aggrieved at the nature of the consultation document it was not open to him to “wait and see” if he liked the result of the process, nonetheless’.

Regarding the second ground, the court took the view that the ‘scheme behind the Localism Act was to oblige authorities to canvass and consider the ability of a “relevant body” to provide a service as required. That the procurement exercise relates to the service subject to the expression of interest cannot be intended to mean that the mandatory procurement exercise “extends to the widest limits of the bid, irrespective of what the authority wants”. For the “relevant service” is the service relevant to the authority because that is the service which they require’. Therefore, services ‘wider than what is required are not relevant’. Permission was consequently refused on this ground.

As for the best value duty challenge, the court noted that although this required authorities to seek targeted improvement, there was no absolute duty to succeed in the attempt. The claimant alleged breach of best value because of failure: (i) properly to consult; (ii) to take up GLL’s ‘credible indications’ that it could get a better service; and (iii) to consider all possible savings, including central support costs. In the circumstances it was contended that the council ‘acted irrationally and perversely by determining what service it wanted before the procurement process and by choosing the model it did in preference to those put forward by other contenders’.

However, in the court’s view this trespassed from the proper review function of the court into the substantive merits of the decision which was the proper domain of the council as decision-maker.

The report to the council’s executive (which drew on the expertise of council officers) was actually ‘lengthy and detailed’. It set out the issues, canvassed options ‘and by reference to the financial information and the details of the various proposals’ made a recommendation. With the report before it, the executive considered the matter and made its decision. ‘It is not,’ the judge said, ‘for this court to audit that process.’

There was therefore nothing in this challenge to demonstrate that the council reached the decisions in question ‘in a manner susceptible to successful judicial review’.

Function of courts on JR

This is to review the substantive and/or procedural lawfulness of a public authority decision. It is not an appeal nor does it enable a court to stand in the shoes of the decision-maker and retake the authority’s decision accordingly. Many claimants, aggrieved by local authority decisions (particularly the effect of austerity budget cuts on services) appear not fully to understand this or, if they do, nevertheless decide to attack the public authority decision on any potentially relevant procedural grounds. This is presumably in the hope either that the authority will redetermine the issue in their favour or at least the claimants might achieve a stay of execution. This strategy partially succeeded in the first Draper decision but failed in the second. For the authority can always retake the decision in question.

As Collins J said in the first Draper decision, the fact that there is overwhelming objection to a decision does not in itself mean that it is unlawful. For in that case: ‘The decision to make the £2m cuts was a political one which was not and cannot be challenged in the courts’. And although the ‘need for cuts will inevitably produce hard decisions for many… that does not make them unlawful’.