The Queen v Secretary of State for the Environment ex parte London Borough of Hammersmith and Fulham and Others
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS |
| Judgment Date | 03 July 1990 |
| Judgment citation (vLex) | [1990] EWCA Civ J0703-3 |
| Docket Number | 90/0606 |
| Court | Court of Appeal (Civil Division) |
| Date | 03 July 1990 |
[1990] EWCA Civ J0703-3
The Master of the Rolls
(Lord Donaldson)
Lord Justice Ralph Gibson
Lord Justice Taylor
90/0606
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
MR. ANTHONY SCRIVENER Q.C., MR. ROGER HENDERSON Q.C., MR. JAMES GOUDIE Q.C., MR. IAN CROXFORD, MR. JOHN HOWELL, MR. ALAN WILKIE and MR. TIMOTHY MOULD (instructed by Messrs. Sharpe Pritchard) appeared for the London Borough of Camden, the London Borough of Haringey, the London Borough of Islington, the London Borough of Greenwich, St. Helens Metropolitan Borough Council, Rotherham Borough Council, Doncaster Borough Council, Avon County Council, Barnsley Metropolitan Borough Council, the London Borough of Brent, Bristol City Council, the London Borough of Lambeth, North Tyneside Metropolitan Borough Council, Basildon District Council, Calderdale Metropolitan Borough Council, the London Borough of Hammersmith and Fulham, and Rochdale Metropolitan Borough Council.
MR. STEPHEN SEDLEY Q.C. and MR. ANTHONY BRADLEY (instructed by Messrs. Sharpe Pritchard) appeared for the London Borough of Southwark.
MR. ALAN NEWMAN Q.C. and MR. PHILIP ENGELMAN (instructed by Messrs. Kingsford Stacey) appeared for the Derbyshire County Council.
LORD GIFFORD Q.C. and Ms KATE MARKUS (instructed by the Brent Community Law Centre) appeared for Mr. Michael Heiser, Chairman of the Governors of William Gladstone Community School, Brent, and Ms Maureen Parris, Chairman of the Governors of Brentfield Junior and Infant School, Brent.
MR. JOHN LAWS, MISS PRESILEY BAXENDALE and MR. PAUL WALKER (instructed by the Treasury Solicitor) appeared for the Secretary of State for the Environment.
This judgment, of which the three members of the court are joint authors, constitutes the judgment of the court.
INTRODUCTION
The applicants for judicial review appeal against the refusal of relief by a Divisional Court consisting of Leggatt L.J. and McCullough and Roch J.J. As is well known, the subject matter is the Secretary of State's invocation of his powers under the Local Government Finance Act 1988 to "cap" or limit the amount of the community charge or precept which particular charging and precepting authorities designated by him can levy. The matter is of considerable urgency since the timetable is such that, subject to House of Commons approval of a draft order, the Secretary of State would wish to make orders under the Act on 48 hours' notice to the applicants. Once such orders are made the authorities concerned will be involved in significant expenditure which would be wasted if relief were subsequently to be granted. It is also of very considerable importance in that our decision, like that of the Divisional Court, will affect 19 local authorities and something of the order of 4 million residents in the areas concerned, both in their capacity as community charge payers and users of the services provided by the authorities.
The Divisional Court gave judgment on Friday 15th June after an expedited hearing dictated in part by the fact that the Secretary of State had said that he would not seek Parliamentary approval of a draft charge capping order before 18th June, but might feel obliged to seek such approval on or shortly after that date. In the light of indications that the applicants might wish to appeal, we began the pre-reading of relevant papers on the same day and continued the process on Monday 18th June and the morning of 19th June, oral argument beginning at 2 p.m. on that day and ending at noon on Wednesday 27th June. After a short adjournment we announced that the appeals would be dismissed and undertook to give our reasons as soon as possible. This we now do.
It is customary for judgments in the Court of Appeal to begin by "setting the scene" before moving on to an examination of the arguments and an expression of the court's conclusions. We do not propose to do so in this instance for three reasons. The first is the time factor. To do so would be time-consuming, for the whole system of local government finance is complex and the legislation with which we are concerned could not have been expected to, and has not, simplified matters. Second, those immediately concerned are fully familiar with the background and issues, whilst those more remotely concerned, notably the community charge payers, are much more inteested in the result than how it is arrived at. Third, notwithstanding Leggatt L.J.'s expressed fears that, whilst the Divisional Court had reached clear conclusions, pressure of time might have led to the presentation of those conclusions and of the reasons for them being less than felicitous, the judgment of the Divisional Court is in fact a model of clarity upon which we could not possibly improve. Instead, therefore, of ourselves seeking to "set the scene", we propose in this instance to treat the divisional court's account of the statutory and factual background (pp. 1–39) as incorporated as a preface to our judgments or at least to assume that all who wish to refer to our judgments will have read the divisional court's judgment, studied it carefully and appreciated that, in default of so doing, our own judgments may not be fully intelligible.
THE MAIN ARGUMENT
The scope of judicial review
This received consideration in pages 39–43 of the Divisional Court's judgment. We agree with the judges of that court that this is a case in which the separation of powers between the legislature, the executive and the judiciary is relevant and important. It is no less important that the nature of this separation and the precise role of the judiciary should be understood by politicians, press and public alike. In particular they should appreciate that we are not concerned with whether the new system of local taxation is or is not "a good thing". Nor are we concerned with the merits or demerits of particular aspects of this system or with the wisdom or lack of wisdom displayed by the Secretary of State in taking the actions which we have been called upon to examine. These are matters for Parliament and not for us.
The role of the judiciary is essentially that of a referee. In saying this we do not suggest for one moment that the Secretary of State and the local authorities are involved in any sort of game. But the powers and duties of each of them are governed by rules. In the Football World Cup, which is engaging the attention of so many at the present time, the moves made by the players and the tactics employed by the teams are matters entirely for them. The referee is only involved when it appears that some player has acted in breach of the rules. The referee may then stop play and take some remedial action but, tempting though it may be, it is not for him to express any view on the skill of the players or how he would have acted in their position. Still less, following a breach of the rules, does he take over the position of one of the players. So too with the judiciary.
The role of the referee in the World Cup is somewhat simpler than that of the judiciary to the extent at least that he is applying the same set of rules to every game. In our field, the rules are made by Parliament supplemented by and against the background of rules of the common law, but the complication lies in the fact that Parliament, understandably and indeed inevitably, tends to lay down different rules for different situations. We are therefore continually being faced with the need to study, interpret and apply new versions of the rules. Indeed, the problem is usually not so much finding out what has happened on "the field of play", as deciding whether what happened was or was not in breach of the rules. That is certainly true of the present dispute, the Secretary of State's powers and duties being derived from a brand new and politically controversial statute, namely the Local Government and Finance Act 1988.
In general we agree with the analysis of the Divisional Court. Thus allegations of illegality, procedural impropriety and, which is not alleged, bad faith or improper motive are clearly within our purview. Where we differ from the Divisional Court is in relation to their exposition of a limitation upon our jurisdiction under the head of "irrationality" which, basing themselves on Nottinghamshire County Council v. Secretary of State for the Environment [1986] A.C. 240, they thought was imposed on, or should be accepted by, the courts when confronted with disputes concerning public financial administration where the decision impugned has been or will be subject to approval by one or both Houses of Parliament. We think that the Divisional Court misunderstood that decision which, like this case, was concerned with local taxation. If the House of Lords had so decided, it would have been inconsistent with Hoffmann-La Roche v. Secretary of State for Trade and Industry [1975] A.C. 295 and, in particular, the speeches of Lord Morris of Borth-y-Gest at p. 349...
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