R (on the Application of Christchurch Borough Council) v Secretary of State for Housing Communities and Local Government

JurisdictionEngland & Wales
JudgeSir Ross Cranston
Judgment Date07 August 2018
Neutral Citation[2018] EWHC 2126 (Admin)
Docket NumberCO/2005/2018
CourtQueen's Bench Division (Administrative Court)
Date07 August 2018

[2018] EWHC 2126 (Admin)




Royal Courts of Justice

Strand, London, WC2A 2LL


Sir Ross Cranston

(sitting as a judge of the High Court)


R (On the Application of Christchurch Borough Council)
Secretary of State for Housing Communities and Local Government


East Dorset District Council, North Dorset District Council, Purbeck District Council, West Dorset District Council, Weymouth and Portland Borough Council, Bournemouth Borough Council, Poole Borough Council and Dorset County Council
Interested Parties

Nathalie Lieven QC and Natasha Simonsen (instructed by Sharpe Pritchard LLP) for the Claimant

Sir James Eadie QC and David Pievsky (instructed by the Government Legal Department) for the Defendant

Gemma White QC (instructed by Bircham Dyson Bell) for the Interested Parties

Hearing date: 30 July 2018

Judgment Approved

Sir Ross Cranston



This is a challenge by the claimant, Christchurch Borough Council, to the decision of the Secretary of State for Housing, Communities and Local Government to his use of the power in section 15 of the Cities and Local Government Devolution Act 2016 (“the 2016 Act”) to lay before Parliament on 29 March 2018 regulations to amend the Local Government and Public Involvement in Health Act 2007 (“the 2007 Act”). The regulations and an associated order have the effect of implementing a proposal to reorganise local government in Dorset, which includes the abolition of the claimant. The claimant opposes the proposal. All other local authorities in Dorset – the interested parties in this claim — support the proposal and want it implemented without delay, as their counsel reiterated in endorsing the Secretary of State's case at the hearing. Like the claimant they too will be abolished in the reorganisation.


There is a keen interest in the outcome of this judicial review, in particular its consequences for the claimant. The hearing was well attended and Sir Christopher Chope, Member of Parliament for Christchurch, was in attendance throughout. Counsel for both the claimant and the Secretary of State acknowledged that the proposal to change local government in Dorset was politically controversial.


This judicial review is not concerned with the merits of the proposal. None of the arguments before the court were about whether the reorganisation would reap the advantages which various reports about the reorganisation claim. Nor did the claimant raise any issue of unfairness in the procedure which the Secretary of State adopted in considering and giving effect to the proposal for the reorganisation.


Rather, as counsel for the claimant accepted in the course of argument, it is the legal form adopted for implementing the proposal which is at the base of these proceedings. The claimant's case is that the Secretary of State has unlawfully adopted regulations with retrospective effect using the “Henry VIII” clause in the 2016 Act. The regulations are retrospective in that they apply to a proposal for the reorganisation of local government which had been worked up and was therefore in existence before they came into effect. On the claimant's case the regulations are therefore beyond the power which Parliament conferred on the Secretary of State. Accordingly they are ultra vires, along with the implementing order. It is this and the associated legal issues which this judgment addresses, not any wider question about whether local government reorganisation in Dorset is a good or bad thing.



Christchurch Borough Council has been one of nine local authorities in Dorset. Of these nine authorities Bournemouth Borough Council and the Borough of Poole have been unitary authorities, providing all council services to residents in their respective areas through a single tier of local government. Outside Bournemouth and Poole Dorset has had two tiers of local government, with some services provided by Dorset County Council (such as education, highways, libraries and social services) and others (such as parks, revenues and benefits, housing, leisure and planning) provided by one of East Dorset District Council, North Dorset District Council, Purbeck District Council, West Dorset District Council, Weymouth and Portland Borough Council, and Christchurch Borough Council.


A convenient place to begin the chronology leading to the proposal and the legislation for reorganising this system of local government in Dorset is a meeting at the end of November 2015 between the then Secretary of State and the leaders (or deputy leaders) of the Dorset councils, including the claimant. There had already been some discussion about a potential proposal for future, unitary local government structures across Dorset, in light of declining central government funding and the demand for services, which the Secretary of State had encouraged.


Meanwhile, what was to become the 2016 Act had its first reading in the House of Lords on 28 May 2015. The Bill had its second and third readings in the House of Commons on 14 October and 7 December 2015 respectively. After a period of ping pong between the two houses on 12 January 2016, the Bill received Royal Assent on 28 January 2016.


In August 2016 there was a report from the consultants “Local Partnerships” on the potential options for reconfiguring local authorities in Dorset to obtain financial benefits. The report concluded that there would be savings from a reconfiguration, which would repay the associated costs in a short period. At a number of meetings of the claimant's full council concerns were voiced about the proposals, including flaws in the financial analysis underlying the case for change.


At a subsequent meeting in November 2016 between the Secretary of State and the leaders (or deputy leaders), the Secretary of State stressed the importance of re-organisation being ‘bottom up’ and of the councils maintaining a dialogue with local MPs. Next steps were explained, that first the councils would submit a proposal, after which the government would seek to lay before Parliament the relevant secondary legislation. It would be necessary to obtain formal consent to that secondary legislation from the councils. Following this meeting the claimant's Scrutiny and Policy Committee highlighted serious concerns with the approach being pursued by the proponents for change.


A report in December 2016 from an organisation “Opinion Research Services” set out its findings about public opinion in Dorset on the restructuring of local government. It had distributed questionnaires and conducted workshops. Overall across the county there was clear and even emphatic support for moving to two councils. The exception was in Christchurch, where the open questionnaire showed that a majority of respondents opposed a reduction to two councils. In the more representative household survey, the report said, support for two councils was much higher. The shift in Christchurch from less positive to more positive views was particularly pronounced in the residents' workshop, where nearly two-thirds of participants ended by approving the proposal for two councils.


PWC's report, “Case for Change Local government reorganisation in Dorset” in December 2016 concluded that local government reorganisation represented a significant opportunity for Dorset. Existing cooperation between local authorities in the county was good, but Dorset councils were approaching the limits of what they could achieve. Two unitary authorities would enable them to simplify their approach, strengthen their voice at regional and national level, deliver improved services for residents, achieve significant financial savings and provide stronger and more accountable leadership.


The claimant considered a report from its chief executive at an extraordinary meeting concerning the issue on 31 January 2017. It referred to the process that, after any locally led submission proposing re-organisation, the next step would be regulations made by the Secretary of State modifying the procedural requirements of the 2007 Act.


On 9 February 2017, six of the nine Dorset councils submitted to the Secretary of State their formal proposal for re-organisation of local government in the county. It was entitled “Future Dorset”. The claimant opposed the proposal, along with Purbeck and East Dorset councils.


In response to a Parliamentary Question from Sir Christopher Chope MP, the then Minister for Local Government set out on 28 February 2017 the criteria against which the government would assess any proposal for local government re-organisation in Dorset: a judgement would be made in the round as to whether the proposal if implemented would be likely to improve the area's local government and would command a good deal of local support in the area, and whether the area itself was a credible geography for the proposed new structures.


From July 2017 joint committees consisting of members nominated by each of the councils met monthly to undertake the work of implementing the proposal. The joint committees established specific groups to examine issues including the harmonisation of council tax, electoral arrangements, governance, and the division of the current functions, staff and budgets. The preparatory work involved additional expenditure by the councils.


An extraordinary meeting of the claimant on 8 August 2017 considered a further report. It referred to the fact that the Secretary of State, if satisfied of the merits of the Dorset proposal, would make regulations modifying the procedural requirements of the 2007 Act and a structural change order to implement it.


On 7 November 2017, the Secretary of State announced that he was minded to implement the proposal from the Dorset...

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