Asian Music Circuit, R (on the application of) v Arts Council England

Judicial review examines the legality and fairness of the decision-making process, not the merits of the underlying decision. A public body must follow material procedural commitments contained in its published guidance. A failure to do so may make the process unfair, particularly where the guidance materially affects how applications are assessed. Relief may nevertheless be refused where the court is satisfied that the decision would inevitably have been the same. Mere probability is insufficient. The court must remain outside the merits, while assessing whether the procedural defect could realistically have affected the outcome.

The claimant, a long-established Asian music organisation, challenged the defendant’s decision not to fund it under a new national portfolio funding programme. The programme replaced the organisation’s previous regular funding arrangement and involved a two-stage process: individual assessment of each application, followed by balancing the national portfolio.

Permission to seek judicial review was refused at first instance but granted on limited grounds by the Court of Appeal. The central issue was whether the defendant had failed to follow its published process or had failed to consider relevant matters, including the claimant’s potential contribution to the defendant’s goals, its partnerships, financial position and diversity.

1. Outcome. The application for judicial review was dismissed. Although one aspect of the assessment process was unfair, the court was satisfied that correcting it would not have affected the result.
2. The court’s function was confined to reviewing the process by which the Arts Council reached its decision. It could not substitute its own assessment of the claimant’s artistic merits, financial position or suitability for funding. This reflected the approach in Chief Constable of the North Wales Police v Evans [1982] 1 WLR 1155 and Pam Smith v North East Derbyshire PCT [2006] 1 WLR 3315.
3. The Arts Council was entitled to assess financial sustainability by reference to the criteria of the new programme. Its conclusion that the claimant was relatively weak financially was a judgment for the decision-maker and was not irrational or based on a fundamental factual error.
4. The assessment of future partnerships involved an important requirement which had not been made sufficiently clear in the published guidance. It was therefore unfair to mark down the application intrinsically for failing to demonstrate new partnerships and detailed future venues when the guidance had not clearly stated that requirement. The court did not criticise the evaluative judgment itself, only the lack of fair notice.
5. The absence of a formal favourable assessment under the diversity goal did not materially invalidate the process. The Arts Council was aware of the claimant’s strong diversity record and considered its effect when balancing the portfolio. The alleged belief that the claimant mainly supported international rather than British artists was not shown to have been a material factor.
6. The relevant question was whether the procedural defect could have made a difference. Probability was insufficient; the decision would have had to be shown to be inevitably different. Having considered the evidence, the court was satisfied that the decision would have been the same because of the comparative weakness of the claimant’s financial and future programme plans and the availability of other organisations to contribute to the portfolio.

• Court of Appeal: Permission to appeal against the refusal of permission for judicial review was granted on limited grounds: [2012] EWCA Civ 282.
• High Court (Administrative Court): The judicial review application was dismissed.