Shrewsbury and Atcham Borough Council v Secretary of State for Communities and Local Government

JurisdictionEngland & Wales
JudgeLord Justice Waller
Judgment Date04 March 2008
Neutral Citation[2008] EWCA Civ 148
Docket NumberCase No: C1/2007/2413 .CO/4310/2007 CO/3257/2007
CourtCourt of Appeal (Civil Division)
Date04 March 2008
Between
(1) Shrewsbury & Atcham Borough Council
(2) Congleton Borough Council
Appellants
and
The Secretary Of State For Communities And Local Government
Respondent
and
Shropshire County Council
(interested Party)

[2008] EWCA Civ 148

Before:

Lord Justice Waller

Vice President Of The Court Of Appeal, Civil Division

Lord Justice Carnwath and Lord Justice Richards

Case No: C1/2007/2413

C1/2007/2411

.CO/4310/2007

CO/3257/2007

IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)

MR JUSTICE UNDERHILL

Royal Courts of Justice

Strand, London, WC2A 2LL

Andrew Arden QC, Jonathan Manning & Laura West (instructed by Congleton Borough Council and Shrewsbury & Atcham Borough Council) for the Appellants

James Eadie & Catherine Callaghan (instructed by Treasury Solicitors) for the Respondent

Richard McManus QC and Andrew Sharland for the Interested Party

Hearing dates : 28th, 29th and 30th January 2008

Carnwath LJ:

vIntroduction

1

This appeal concerns proposals of the Secretary of State for Communities and Local Government to replace two-tier local government in some parts of the country with unitary authorities. The proposals with which we are concerned are those for Shropshire, advanced by the County Council (“Shropshire”), and for Cheshire, advanced by the Chester City Council (with three other councils). They are strongly opposed by the Borough Councils for Shrewsbury and Congleton (“the Boroughs”), both of which councils are liable to be abolished. They are jointly represented before us by Mr Arden QC, Mr Manning and Ms West.

2

The Boroughs brought judicial review proceedings to challenge the process adopted by the Secretary of State, and decisions made by her in the course of that process. They challenged both the right of the Secretary of State to embark on the exercise at all, in advance of the enactment of the necessary legislation; and also the way in which the exercise was carried out, particularly as respects the assessment of public support. On 10 th October 2007, Underhill J dismissed the applications. The Boroughs appeal.

3

Since the judgment, the Local Government and Public Involvement in Health Act 2007 (“the 2007 Act”) has been passed and brought into effect; the Secretary of State has made decisions under the Act to proceed with the proposals; and the necessary orders have been laid before Parliament. During the hearing before us, after some pressure from the court, the Boroughs applied for and were granted permission to amend their applications to cover these later events. One of the issues before us is the extent to which, in this new legal context, the previous arguments remain relevant.

Factual Background

The Invitations

4

The story began in October 2006, with the publication of a White Paper: Creating Strong and Prosperous Communities (Cm 6939-I). This explained the Government's view that new “governance arrangements” were needed for areas with two-tier authorities, one object being to reduce “the risks of confusion, duplication, and inefficiency between tiers” (para 3.54). Authorities in England were invited to make -

“proposals for unitary local government that:

* enhance strategic leadership, neighbourhood empowerment, value for money and equity;

* command a broad cross-section of support; and

* are affordable, representing value for money and meeting any costs of change from councils' existing resources “(para 3.55)

5

At the same time a separate “Invitations” document was sent to councils in England inviting “proposals for future unitary structures”. The criteria “with which any proposal must conform” were set out as follows:

“(i) the change to the future unitary local government structures must be:

* affordable, i.e. that the change itself both represents value for money and can be met from councils' existing resource envelope; and

* supported by a broad cross section of partners and stakeholders; and

(ii) those future unitary local government structures must:

* provide strong, effective and accountable strategic leadership;

* deliver genuine opportunities for neighbourhood flexibility and empowerment; and

* deliver value for money and equity on public services.” (para 3.1)

Under the heading “A broad cross section of support”, there was the following:

“The Government recognises that any proposal may not carry consensus from or within all sectors. While no single council or body, or group of councils or bodies, will have a veto, it will be necessary for any proposal to have support from a range of key partners, stakeholders and service users/citizens. The Government will consult on proposals that it is minded to implement prior to taking any final decisions.” (para 3.5, emphasis added)

It will be noted that the reference to “service users/citizens” does not in terms appear in the criteria as stated in paragraph 3.1.

6

Proposals were to be submitted to the Secretary of State by 25 th January 2007. The Secretary of State would then implement a three-stage process for handling the proposals. Stage 1 would consist of an initial assessment whether the proposals conformed to the criteria specified in section 3. Detailed requirements were set out as to the supporting material that would be required, including “a business case and supporting financial analysis” (para.4.2) and a “full description of the proposed local government structure” (4.3). It was recognised that to prepare a proposal a council might need information from other local authorities. The Government “expects local authorities to co-operate with each other in the provision of information needed to construct robust proposals” (4.21), but in default of co-operation coercive powers might be used:

“The Secretary of State will be prepared to use her powers under section 230 of the Local Government Act 1972 to require such information to be provided, should such co-operation not be forthcoming.” (para.4.22)

7

At the end of March 2007 the Secretary of State would announce which proposals would and would not proceed:

“Only proposals which in the Government's opinion meet the criteria set out in section 3 will proceed to stage 2 of the process.” (para 5.8)

Stage 2 would consist of consultation with “partners/stakeholders” in the areas affected by the proposals. “Partners/stakeholders” was defined as including all local authorities, “the wider public sector” (for example, the police), the business community, and the “voluntary and community sector”. The “financial case underpinning” proposals would be “subject to limited assurance in relation to the submissions of baseline figures”, which would be carried out by the Audit Commission at the expense of the councils making the proposals (para.5.11).

8

Stage 3 would consist of re-assessment of the proposals, taking account of the outcome of a “stakeholder consultation” to be held on each proposal, and any further development of the business case. The Government intended to announce by the end of July 2007 “which proposals will proceed to implementation” (para 5.13–4). Following that announcement, the Government would work with the authorities in the affected areas to prepare the necessary secondary legislation. It expected “all authorities affected to co-operate fully to ensure that the process is completed smoothly” (para.5.21).

Statutory powers

9

A policy decision was apparently made at the outset not to use the existing legislative machinery under the Local Government Act 1992 (“the 1992 Act”); but instead to promote new legislation. A Bill (The Local Government and Public Involvement in Health Bill), was introduced to Parliament on 12 th December 2006, with a view to conferring the necessary powers to implement the proposals. The reasons for seeking new powers were most clearly explained in the Regulatory Impact Assessment which accompanied the Bill.

“Decisions about the form and structure of local government have always been decisions for Parliament. However, at present the Secretary of State can only implement changes to principal authority structure and administrative boundaries following a review by, and on receipt of recommendation for change from, the Electoral Commission. There is no method of local authorities instigating change or for regular checks that the structure and boundaries of local government are fit for purpose.”

The option of “using the present legislation and asking the Electoral Commission for advice” had been rejected because —

“it has never been the intention to use the Electoral Commission in this way. At the time of the transfer of the Local Government Commission to the Electoral Commission it was clearly stated that the 'Electoral Commission would not be asked to conduct any wholesale review of local government'. As set out above experience shows that such a review would be disproportionately lengthy, divisive and expensive.” (Section 3.1, paras 3, 12)

The Minister explained to Parliament that previous attempts at local government reform had “dragged on year in, year out. People were distracted from the job of delivering for local people…” (Hansard HC 22 January 2007 col 1148).

10

In the Invitations document, it was made clear that the proposals could not be implemented unless and until the legislation was passed. It was noted that, “assuming legislation in the 2006/07 Parliamentary Session”, orders implementing proposals could be made by the end of 2007:

“This would allow any elections to…be held in May 2008, permitting the new unitary structure to be fully operational by April 2009 at the latest” (para.5.20).

Initial consideration of the Proposals

11

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