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Talawa's Judicial ReviewDateline: 9th October, 2005The news that Talawa has asked for a judicial review of the decision of Arts Council England to discontinue funding comes as no surprise. It has been on the cards since ACE first made the announcement in July and various black organisations have been encouraging it to do so. In a judicial review a High Court judge examines the way in which a public body made a disputed decision to ensure that all the correct procedures were followed and proper consultation took place. It is a purely legal procedure, reviewing "the lawfulness of an enactment or a decision, action or failure to act in relation to the exercise of a public function". The protocol does not "impose a greater obligation on a public body to disclose documents or give reasons for its decision than that already provided for in statute or common law. However, where the court considers that a public body should have provided relevant documents and/or information, particularly where this failure is a breach of a statutory or common law requirement, it may impose sanctions." The court will not make a decision on the basis of the correctness or even morality of the decision, but purely on the grounds of legality: is the decision lawful? The lawfulness of a decision can be challenged on the grounds of illegality, irrationality or unfairness. According to the Public Law Project's guidance on Judicial Reviews, the ground of unfairness deals with "the process for reaching a decision and includes the right to a fair hearing (which includes the rule against bias). Also the courts have recently extended the idea of fairness to prevent abuses of power where public bodies have sought to go back, without sufficient justification, on promises made (called legitimate expectations)". Although Talawa have yet to make public the grounds of their decision to go to the High Court, it would seem that they may well be making it on the latter grounds, perhaps coupled with the grounds that the decision is irrational or perverse. It should be noted that, even if the court rules against ACE in this case, it can still go back and make the same decision again, so long as it follows the proper procedures the second time around. ACE has said that its decision is based on “a series of ongoing issues around organisational weakness, the financial viability of the building project and its artistic and business plans”. It is perfectly obvious that non-lawyers do not have the knowledge of the law and its intricacies to comment on the justification of either party in the dispute - that we must leave to the High Court - but it does raise a concern that has been raised often in the past, the transparency of ACE's decision-making. It is a justifiable concern, for, in considering who does and who does not get funding, ACE is dealing with the livelihoods of those involved. It is the job of ACE (and ACW, SAC and ACNI) to make that kind of decision and so it is vital that all procedures must be followed to the letter and that the process should be completely transparent: a public body dealing with the distribution of public money for the benefit of the public must not make its decisions behind closed doors or hide behind arcane procedures. That is vital when it first decides whether or not to fund a company or project: it is even more so when it decides to withdraw funds that were already awarded.
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