R (Albert Beale and Lesley Carty) and London Borough of Camden
| Jurisdiction | England & Wales |
| Judge | Mr Justice Munby |
| Judgment Date | 08 January 2004 |
| Neutral Citation | [2004] EWHC 6 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6212/2003 |
| Date | 08 January 2004 |
[2004] EWHC 6 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE HONOURABLE MR JUSTICE MUNBY
Case No: CO/6212/2003
Ms Kate Markus (instructed by Leigh Day & Co) for the claimants
Mr Ashley Underwood QC and Mr Kelvin Rutledge (instructed by the Borough Solicitors Branch) for the defendant
Central government policy is that local authorities must improve their stock of council houses so that by 2010 all social housing tenants have homes meeting the "decent home standard". This will obviously cost a lot of money. The London Borough of Camden ("Camden") estimates that it will cost it £283 million more than it has available. There are various methods by which local authorities can in principle comply with central government's objectives and raise the necessary money. One is by means of a Large Scale Voluntary Transfer ("LSVT"). Another is by means of a Private Finance Initiative ("PFI"). Another – which has been chosen by Camden following an options appraisal which concluded that the LSVT and PFI options were not available to it and that there was no realistic chance of either borrowing the £238 million commercially or persuading the government to provide funds directly to it – is by means of an entity called an Arms Length Management Organisation ("ALMO"), which involves the transfer to the ALMO of the management, but not the ownership, of the local authority's council houses. Such a transfer to an ALMO is provided for by section 27 of the Housing Act 1985 and requires the approval of the Secretary of State ("the SoS"), in practice the approval of the Office of the Deputy Prime Minister ("ODPM").
In March 2003 ODPM published Guidance on Arms Length Management of local authority housing ("the ODPM Guidance") which makes it clear (see paragraph 4.8(a)) that in reaching decisions on section 27 applications the SoS will wish to be satisfied about a range of issues, including compliance with key principles in the ODPM Guidance, and that local authorities when applying for section 27 approval "must" complete a questionnaire in the form set out in Annex C to the ODPM Guidance.
One of the key principles in the ODPM Guidance, and the one which lies at the heart of the current litigation, is that set out in paragraphs 5.1 and 5.2:
"5.1 Key aims of the ALMO initiative are to give tenants the opportunity to play a greater role in the management of their homes, and to ensure that services are responsive to their needs. … Tenants should have been closely involved throughout the appraisal process leading to the choice of the ALMO option. Local authorities seeking ALMO funding and s 27 approval must … show that the ALMO proposals have the support of a majority of tenants.
5.2 Authorities may choose to ascertain tenants' views through a ballot, though the Secretary of State is prepared to accept other clear evidence of their support. To ensure an informed choice, authorities should give to all tenants and leaseholders information about and opportunity to comment on:
• the reasons for setting up the arms length body;
• the functions to be transferred and the continuing role of the local authority;
• the composition and status of the arms lengthy body and its Board, including the selection and role of the tenant Board members;
• tenants' and leaseholders' rights;
• performance standards for the arms length organisation."
Question 11 in the questionnaire set out in Annex C to the ODPM Guidance reads in material part as follows:
"Please summarise how tenants and leaseholders of dwellings for which the ALMO will be responsible have been consulted about the ALMO proposals. Please state what the Council has done to establish whether the majority of tenants and leaseholders fully appreciate the implications of these proposals … "
So what the ODPM Guidance requires is that those affected should "fully appreciate the implications" of the local authority's ALMO proposals and so be able to make "an informed choice". On the other hand it is to be noted that what they are to be given "information about and opportunity to comment on" are the matters specified in paragraph 5.2 and that these, although they include the "reasons for setting up" the ALMO, do not include, as it were, any reasons there may be for not setting up an ALMO.
The proceedings
It is apparent that the government's policy of promoting ALMOs is seen in many quarters as controversial. There is a national opposition campaigning under the slogan Defend Council Housing and there is opposition in Camden campaigning under the name Camden Defend Council Housing or Camden DCH. The main plank of the Camden DCH campaign is clear. Camden DCH says that ALMOs are "two-stage privatisation". Its campaign slogans are "SAY NO TO ALMOs" and "Say NO to privatisation". It has consistently identified what it describes as "8 reasons to reject ALMOs". The first three (as set out in the June 2003 issue of a broadsheet published by Camden DCH) are:
"1 This government wants to privatise council housing – ALMOs are a key part of their strategy.
2 Camden already has nearly ?rds of the money it needs – there is no urgent reason to go ALMO.
3 Elected councillors will no longer be accountable for what happens to our homes. It's a recipe for excuses."
I need go no further. It is apparent that ALMOs involve political and social issues which are seen in some – for all I know in many – quarters as being of very great importance. But these are, as I have said, political and social issues: they are not legal issues. They are issues to be resolved by democratically elected and democratically accountable politicians – in the first instance by Camden councillors and in the final analysis by the SoS – not by a judge. The fact is that Parliament has chosen to confer the relevant power of approval under section 27 of the 1985 Act on the SoS, not on the court. My duty is to recognise the will of Parliament and not to seek in any way to usurp a power which Parliament has chosen to confer on an accountable minister rather than on an unaccountable judge.
I propose therefore to say nothing whatever about either the merits or demerits of ALMOs. They are, indeed, matters on which the court has – can have – no views of any kind. Nor, save to the extent that is absolutely necessary to enable me to decide the very narrow legal questions which are put before me, do I propose to enter into any description, let alone any analysis, of the various arguments which have been deployed on the one side by Camden and on the other by Camden DCH. It would be neither wise nor helpful for a judge to say anything that might hereafter be relied upon, however inappropriately or even mistakenly, as supporting one or other side of the political and social argument.
The claimants, who as I understand it are prominent supporters of Camden DCH though they bring the present proceedings personally and not in any representative capacity, issued an application on 20 November 2003 seeking permission to apply for judicial review of what were said to be Camden's:
"Failure … to provide to its tenants and leaseholders any or any sufficient information setting out the facts and/or arguments against the transfer of the management of … Camden's housing stock to an [ALMO]"
and also of its:
"Proposal … to ballot tenants and leaseholders with the question: "Camden Council proposes to set up a Council owned Arms Length Management Organisation (ALMO) to manage and improve its housing. Do you agree with this proposal: Yes/No?"
The claimants seek declaratory orders that:
"[Camden] has failed to date to carry out a lawful consultation exercise or to provide voters with such information as is reasonably required to enable them to exercise an informed choice in the forthcoming ballot on the proposed ALMO"
and that:
"The proposed ballot question is biased and unlawful."
The claimants also sought, but McCombe J on 24 November 2003 declined to grant and the claimants no longer seek, an injunction:
"preventing [Camden] from balloting tenants and leaseholders until:
(a) a two-sided A4 document containing the views of those opposing the ALMO, printed in one colour and black … has been circulated by [Camden] to all council tenants and leaseholders in Camden;
(b) the ballot question has been amended so as to delete the words "Council owned" and "and improve"."
By the time the matter came on for hearing before me on 10 December 2003 the ballot had in fact commenced. It has since concluded, though as I understand it the ballot boxes have not been opened pending the handing down of this judgment.
The consultation process
The claimants' case as put forward on their behalf by Ms Kate Markus is that although Camden has circulated a vast quantity of information to voters this provides almost no information that could enable voters to understand the arguments against an ALMO. She says that Camden DCH is unable to compete with Camden's resources and access to voters. It has done its best with limited resources but has reached, so it is said, only a fraction of the voters. Camden's materials, by contrast, are made available to all. Camden, she says, has not enabled a balanced debate to take place so that tenants and leaseholders can make an informed choice. It has, the claimants say, conducted a propaganda campaign designed to secure a Yes vote. Its approach has been to stifle the debate and, it is said, to take all possible steps to swing the vote in...
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