Judicial review in austerity

As local authorities continue to face ?trying financial circumstances and ?need to take difficult decisions about provision of services, they run a higher risk of decisions being challenged by way of judicial review. Costs can be daunting for applicants seeking to challenge local authority decisions, and for the local authorities defending them. There have recently been some interesting approaches from both sides.

Local authorities are also becoming accustomed to changes to judicial review procedures introduced by the Criminal Justice and Courts Act 2015 (CJCA), although not all provisions are yet in force. The major changes made by the CJCA 2015 were:

Courts must refuse permission if they consider it highly likely the outcome would not have been substantially different without the conduct complained about. Courts may disregard this requirement for reasons of exceptional public interest;

Judicial review applicants must provide information about the source, extent, and nature of their financial resources (not yet in force);

Courts must require interveners to bear their own costs unless exceptional circumstances make this inappropriate;

Courts are expected to grant applications for orders for interveners to pay another party’s costs if one of four specified conditions is met, unless exceptional circumstances make this inappropriate; and

The High Court and the Court of Appeal have the power to make a costs capping order if satisfied that proceedings for which leave has been granted are in the public interest and that without the order the applicant would withdraw the application or cease to participate (not yet in force).

Funding for applicants

Individuals who challenge a local authority’s decision may require support from others to meet the costs involved. CrowdJustice, a crowdfunding platform, has emerged as a means of raising funding for litigation. Litigants set up a case page on the CrowdJustice website, explaining their case and why they need help to fund it. They also specify a deadline and funding target. Visitors to the website can pledge funding for any of the cases featured.

Cases for which funding has been pledged include a judicial review against planning consent for extension of a hazardous waste landfill site; a judicial review of planning permission from a local authority for development of a residential complex; and judicial review of decisions of a care home relating to the applicant’s contact with his wife, who is a resident there.

It remains to be seen if the availability of crowdfunding results in an increase in judicial review actions against local authorities.

Defending judicial review

A local authority faced with an application ?for judicial review may decide that, however confident it is about the validity of its decision, it cannot afford the cost of defending it. A 2015 case made clear the courts’ expectations of public authority respondents, however difficult their financial situation. In R (on the application of Midcounties Co-operative Ltd) v Forest of Dean District Council and another [2015], the council informed the court that it supported a developer’s opposition to a challenge against the council’s grant of planning permission, but could not afford to take an active part in proceedings.

The judge suggested that an authority in such a position should consider:

Whether it has complied with its duty of candour and cooperation by disclosing all relevant documents;

Whether it should file a witness statement to help the court understand its decision-making process;

Whether it should file an acknowledgement of service with summary grounds of resistance to explain why it maintains its decision was legally correct; and

Whether an authority representative should attend court to keep the authority informed ?and enable it to respond quickly to unexpected points arising and judicial questions.

Local authorities will be keen to avoid involvement in judicial review where possible, but need to ensure they understand that they remain under ?a duty to meet their minimum obligations when they are involved.

Codes of conduct

While many councillors observe exemplary standards, the unacceptable conduct of some has led to the UK government and local authorities developing and enforcing codes of conduct. ?These can be useful tools, but the need to balance the importance of good conduct with the human rights of councillors, particularly the right to freedom of expression, is challenging. Many councillors will expect to be as outspoken as they feel they need to represent the interests of their constituents, so this will continue to be a sensitive balance for local authorities.

The legislation has been amended several ?times, resulting in significantly different standards regimes now applying in England and Wales. ?In England the monitoring of conduct is left to ?local authorities, while Wales has retained a more centralised system. 

English local authorities must adopt a code of conduct consistent with principles set out in the Localism Act 2011, which makes provision for councillors to register and declare pecuniary and other interests. They must make arrangements for investigating allegations of code of conduct breaches and ?must appoint independent ?persons from whom they can seek views. ?There are no statutory provisions for sanctions. 

In Wales, local authority codes of conduct must be based on a national model. There are detailed rules about dealing with allegations of code of conduct breaches involving a standards committee, the public services ombudsman for Wales, and the adjudication panel for Wales, and sanctions including suspension and disqualification.

Human rights 

Article 10 of the European Convention on Human Rights (ECHR) gives the right to freedom of expression, but qualifies this at 10(2) by saying this ???may be subject to formalities, conditions, restrictions, or penalties prescribed by law and necessary in a democratic society. This means decisions over allegations of code of conduct breaches must strike the right balance between the rights of councillors and any necessary restrictions on those rights. Political expression attracts a higher level of protection under the ECHR than other expression.

The basis of compatibility was established in Sanders v Kingston [2005]. A councillor challenged a finding that he had breached the code of conduct by failing to treat a person with respect and bringing his office or authority into disrepute. In his application for judicial review, it was suggested the code was not precise enough to comply with the requirement that any restriction on freedom of speech be prescribed by law. 

This was rejected by the court, which found the phrases in the code were specific in describing the nature of the conduct or its consequence. ?The court decided that a tribunal must ask itself: 

Was the tribunal entitled as a matter of fact to conclude a councillor was in breach of the code of conduct? 

If so, was the finding or imposition of a sanction prima facie a breach of article 10? 

If so, was the restriction justified by reason of the requirements of article 10(2)? 

The court found the tribunal was entitled to find against the councillor, and that while the finding represented an infringement of article 10, it could be justified. 

The outcomes of cases since Sanders have varied. The case of R (on the application of Calver) v Adjudication Panel for Wales [2012] was significant in showing how broadly the meaning of political expression, and consequently the extent of protection under the ECHR, should be interpreted. A decision that a councillor had breached the code of conduct with comments about council meetings and the performance of councillors was found to be a disproportionate interference with his right to freedom of expression. The court regarded the comments as political expression, taking the view that the adjudication panel had interpreted this too narrowly. 

In Heesom v The Public Services Ombudsman for Wales and The Welsh Ministers [2014], the court upheld findings that a councillor had breached his authority’s code of conduct but reduced the period of disqualification imposed. This case also acknowledged that tribunals in Wales can take a different stance from standards committees in England, without taking account of the lack of sanctions in England, which might make those imposed in Wales seem severe. SJ

Huw Williams is a partner at Geldards @Geldards www.geldards.co.uk

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