Judicial Review Litigation as an Incentive to Change in Local Authority Public Services in England and Wales
Platt, Lucinda, Sunkin, Maurice, Calvo, Kerman, Journal of Public Administration Research and Theory
INTRODUCTION AND OVERVIEW OF ARGUMENT
This article considers whether, and, if so, how judicial review litigation acts as a lever for change in the delivery of services by local authorities in England and Wales. The article engages with two disparate fields of study. One relates to the incentives for local authorities to enhance their performance and the quality of their service provision. Public administration is increasingly subject to legal controls and performance targets imposed by central government. It is also increasingly susceptible to consumer oriented complaints and challenge systems (Department of Constitutional Affairs 2004: National Audit Office 2004-05). Interest here has generally focused on the influence on local authority performance of monitoring or audit arrangements established by central government as a "virtual consumer," with associated costs for noncompliance.
The other concerns the influence of judicial review on public authorities and the services they deliver. There is significant interest in many countries in the impact of litigation on public administration, in part associated with the international trend toward judicialization of government (Tate and Vallinder 1995). In the United Kingdom, this trend has been manifest in the growing resort to judicial review (Bondy and Sunkin 2008). The work on the influence of judicial review has tended to emphasize its limited influence on administrative decision making (Richardson 2004, 112). Courts may be well suited to adjudicate upon disputes, but their decisions are widely considered to be ineffective drivers of change in the quality of public services, in part because of barriers within public administration to the implementation of judicial decisions (Halliday 2004). Moreover, where courts do exert influence research indicates that this tends to be negative in various ways (Halliday 2000; Loveland 1995, chap. 11; Richardson 2004, 113; for an overview of the US literature on impact, see Canon 2004).
This article brings together the incentive effects of judicial review litigation and its impact on service delivery. Employing a mixed methods study of litigation, it presents new quantitative evidence indicating that judicial review can act as a driver to improvements in the quality of local authority services. It throws light on these findings by exploring perceptions of judicial review among local authority officers.
Important differences exist between judicial review as it is commonly understood in the United States and in the United Kingdom. Given the absence of a written constitution judicial review in the United Kingdom has not been concerned to ensure that public authorities comply with constitutionally imposed obligations, and the role of judiciary is limited by comparison with other countries (Cane 2004). The UK court cannot question the constitutional standing of primary legislation or organizations or systems established by that legislation. Rather, its role is to uphold parliament's will and to ensure that public authorities do not exceed or abuse the powers conferred by primary legislation. UK judges tend to focus on the legality of past actions rather than on what public authorities must do to comply with the law. The range of remedies available to judges is also less extensive than that available to judicial review courts in the United States (Lewis 2004). In particular, UK judges do not appoint monitors or masters to oversee compliance with their judgments. Judicial review focuses on the process of administration rather than on the merits of administrative action and judges will not upset decisions because they disagree with them. Typically, when found to have acted unlawfully, a public body will be expected to retake its decision.
In England and Wales, the judicial review procedure has two key stages: the permission and final hearing stages. At the permission stage, the court considers whether the challenge is arguable and timely, and whether the claimant has standing, and has exhausted other remedies. …