Judicial Review Litigation as an Incentive to Change in Local Authority Public Services in England and Wales

Abstract

Standard-Nutzungsbedingungen:Die Dokumente auf EconStor dürfen zu eigenen wissenschaftlichen Zwecken und zum Privatgebrauch gespeichert und kopiert werden.Sie dürfen die Dokumente nicht für öffentliche oder kommerzielle Zwecke vervielfältigen, öffentlich ausstellen, öffentlich zugänglich machen, vertreiben oder anderweitig nutzen.Sofern die Verfasser die Dokumente unter Open-Content-Lizenzen (insbesondere CC-Lizenzen) zur Verfügung gestellt haben sollten, gelten abweichend von diesen Nutzungsbedingungen die in der dort genannten Lizenz gewährten Nutzungsrechte. Terms of use: Documents in Non-Technical SummaryJudicial review is the principal means by which people can challenge the legality of action taken by public authorities. As such it is an important tool for providing redress and holding government to account, but does it help to improve services or does it interfere with local authorities and detract from what they should be doing?Many now believe that we are becoming too litigious and overly preoccupied with asserting our rights rather than accepting our responsibilities and that this is interfering with government's ability to act in the public interest. But in fact, our findings indicate that there is much less judicial review litigation against local authorities than is widely assumed and that much of it is concentrated on a small number of London Councils. We also found that, rather than detracting from the quality of local government, an increased level of challenge appears to lead to improvements in levels of performance and is therefore helpful to authorities, rather than a hindrance.In this paper, using both analysis of a specially constructed database of litigation against local authorities and the results of a series of interviews with local authority officials, we investigate: the relationship between judicial review litigation and the quality of local authorities as indicated by the government's performance measures; the incentives to implementing judicial review judgments and the obstacles to doing so; and the difference that judgments make to local authorities.There were two key findings from our quantitative analysis, which we were able to interpret using the interview data:1. All things being equal better performing authorities (as measured by government indicators) were less likely to be challenged than worse performing authorities. This indicates that there is a connection between official measures of quality and the public perceptions of quality. It also suggests that challenge is linked to quality of services and is not unnecessarily stimulated by lawyers.2. We also found evidence that authorities improve (at least in terms of the official measures) when the scale of challenge against them increases. We do not know why this is the case, but it indicates that authorities learn from challenges particularly when the pattern of litigation increases from levels that they have become accustomed to.Overall, for most local authorities legal challenge remains a somewhat rare event. But far from...

Using equality legislation as a sword

“…using equality to inform that. Interview 1Judicial reviews can offer clarity to decision makers tasked with implementing decisions while at the same time being unhelpful to those higher in the system who are responsible for decisions about resource allocation (Platt et al, 2010). Research has shown that an increase in the numbers of judicial reviews targeted at a public authority 'may drive improvements in local authority performance, as measured by official indicators' (Sunkin, 2015: 247).…”

“…However, a participant in the study who advises local authorities on fulfilling their PSED said that after an earlier judicial review of a local authority’s round of funding cuts, they were now trying to implement the necessary cuts in line with a proper consideration of equality impact issues:So [local authority] is making a whole range of funding cuts and we’re making sure that there is equality analysis fitting into that, which is obviously going to mitigate risk of legal challenge for the council through judicial review, but also to make sure that those services that are maintained are not discriminating, so services aren’t being cut for the most disabled people, and services are going to be maintained for those where the need is greatest, really…using equality to inform that. (Interview 1)Judicial reviews can offer clarity to decision makers tasked with implementing decisions while at the same time being unhelpful to those higher in the system who are responsible for decisions about resource allocation (Platt et al, 2010). Research has shown that an increase in the numbers of judicial reviews targeted at a public authority ‘may drive improvements in local authority performance, as measured by official indicators’ (Sunkin, 2015: 247).…”

Administrative Justice and Empirical Legal Research

“…One of the most influential-and most controver sial (see, e.g., Schultz, 1998)-judicial impact studies is Rosenberg's (1991) Other studies have also focused more explicitly on issues of administrative justice, by studying the impact of judicial review on administrative agencies (see, e.g., Halliday, 2004;Hertogh and Halliday, 2004). Both Richardson (2004) and Platt, Sunkin, and Calvo (2010) present an overview of some of the most important research in this field in the UK. Also, Sunkin (2004) has identified a number of conceptual issues in researching the bureau cratic impact on judicial review.…”

Administrative Justice in Context: Mapping the Terrain for Further Study

“…Out-of-court settlements can be extremely successful, 31 and in the right scenario court rulings can in£uence the way bureaucracies behave in the future. 32 Likewise, most of the ombudsmen have gone out of their way to publicise their work in a way which informs public bodies of what counts as good administration. 33 There remains an argument, therefore, that the ombudsman can make a di¡e-rence and can have a real in£uence, yet in the theoretical section of the book, the potential contributions and impact of di¡erent redress mechanisms on decisionmaking receive little scrutiny.…”