Walsh v Rother District Council
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MEGAW,LORD JUSTICE BRIDGE |
| Judgment Date | 29 June 1978 |
| Judgment citation (vLex) | [1978] EWCA Civ J0629-3 |
| Date | 29 June 1978 |
| Court | Court of Appeal (Civil Division) |
[1978] EWCA Civ J0629-3
In The Supreme Court of Judicature
Court of Appeal
(Civil Division)
(On appeal from order of Mr. Justice Donaldson - London)
(Revised)
Lord Justice Megaw
Lord Justice Ormord and
Lord Justice Bridge
In the Matter of the Local Government Act 1972
And
In the Matter of the Local Government (Compensation) Regulations 1974
And
In the Matter of Case No. C/12572/76
And
In the Matter of an Appeal against a Decision of the Industrial Tribunal made under section 259 of the above mentioned Act on a Question as to Compensation for loss of employment:
Mr. I.O. GRIFFITHS, Q.C. and Mr. COLIN SMITH (instructed by Miss P. Grant) appeared on behalf of the Appellant.
Mr. PATRICK W. MEDD, Q.C. and Mr. CHARLES GIBSON (instructed by Mr. John G. Millward, Solicitor, Rother District Council) appeared on behalf of the Respondent.
(without calling upon Counsel for the Respondents)
This is an appeal brought from a judgment of Mr. Justice Donaldson given on 17th June of last year, in which the learned judge dismissed an appeal from a decision of an industrial tribunal given in June, 1976. The case relates to a question whether or not compensation is payable, under the provisions of the local Government Act, 1972, and Regulations which have been made under that Act, for loss of employment or loss of emoluments by a local government officer.
The applicant to the industrial tribunal, claiming that he was entitled to compensation under those provisions, is Mr. Nicholas Christopher Walsh. The respondent to that application is the Rother District Council. The local Government Act, 1972, provided for a very substantial reorganisation of local government in England As from 1st April, 1974, under the provisions of the 1972 Act, a large number of old local authorities ceased to exist - all except, I think, parish councils - and their functions were taken over by newly constituted local authorities. In the particular case with which we are concerned the Rother District Council, as a result of the reorganisation under the Act, became responsible, as local authority, for the districts which previously had been the districts of Battle, Bexhill and Rye.
The applicant, who is the appellant in this Court, Mr. Walsh, had before the reorganisation been Town Clerk of the Borough of Lewes. The Borough of Lewes was one of the authorities which disappeared in the reorganisation. It was not an area which was incorporated in the new Rother District Council, but we are told that efforts were made whereby those who, as a result of the reorganisation, would be losing their employment in local authorities which had been abolished by the Act, should be considered, so far aspossible, as candidates for appointments in new local authorities in, broadly, the same area of the country. Mr. Walsh was appointed to be Chief Executive of the new Rother District Council. That appointment took effect from 30th July, 1973. While the new authorities came into existence on 1st April, 1974, appointments had to be made in advance in order that the new authority on 1st April, 1974, might be able to function fully-fledged. Nothing turns on the fact that this appointment of Mr. Walsh was made some 9 months prior to the date when the authority formally took over its new powers.
Before the new Act was brought into force, a Report had been made, known as the Bains Report, as a result of an investigation Initiated by the Secretary of State jointly with various associations of local government officers. The purpose of it was to consider the desirable restructuring of the new authorities when they came into existence, A part of the proposals made in that Report was that there should be, for certain local authorities, a Chief Executive. He would be the head of the permanent staff of the authority, the local government employees who were on the staff of the authority. The Chief Executive would have no departmental responsibilities, but he would be the head of the permanent local government staff. He would be, as was described by Mr. Justice Donaldson in his judgment in the present case, the alter ego of the local authority at the top official level. That Report did not obtain any statutory authority; it was not enacted or referred to in any Act of Parliament; but it was used to a very considerable extent in practice in the restructuring; and it was, no doubt, by virtue of the recommendations of that Report that the appointment of Chief Executive was created in the Rother District Council. That was the 'position to which Mr. Walsh was appointed.
One provision which was made in the Local Government Act, 1972, which might be necessary If that provision of the Bains Report wasgoing to be given practical effect, was the repeal of certain sections of the local Government Act, 1933, which had made it mandatory for local authorities to employ officials such as Town Clerks or Clerks of the Council. Section 112 (3) of the local Government Act, 1972, coupled with repeal provisions in the statute, made it no longer a statutory obligation upon local authorities to have Town Clerks, or Clerks of the Council. Thus, a Chief Executive could be appointed instead of a Clerk of the Council. Mr. Walsh carried out that job as Chief Executive. There is no suggestion of any sort that he failed to carry out his work efficiently and competently. It should be made quite clear that nothing that has arisen in these proceedings in any way reflects upon him as a man or as a Chief Executive officer. However, not very long after the new Council had begun to carry out its functions, towards the end of the year 1975, a proposal was mooted in the Rother District Council that consideration should be given to a change in the administrative structure of the Council, A report was made. It was recommended that various changes should take place in the structure of the local authority, departing from the Bains structure. One of the recommendations was that the office of Chief Executive should cease to exist.
Since a good deal has been made of it in the course of these proceedings, it is right that I should read a few paragraphs from the report, dated 8th December, 1975, which is set out in paragraph 47 of the Decision of the Industrial Tribunal in this case. It was there stated: "In the national economic climate of the time and in the belief that District Councils would have a substantial role to play, the structure adopted at the commencement of the local Government Reorganisation could be justified. In the event we have found that many of the functions and services which affect the development and the environment of the area are no longer within ourcontrol. It is also apparent that the state of the national economy and the severe financial restrictions will not allow for any development of services and will restrict departmental activities to their present or to lesser levels. It is probable that this will be the position for the next three to five years.
"Under such conditions, one of the first casualties must, in my opinion, be the Bains concept of Corporate Management, It is apparent, from our experience to date, that no fruitful results can be envisaged for some years and the resources devoted to it can be: better utilised'". Among the eight suggestions thereafter made, the first was; "Deletion of the post of Chief Executive".
The recommendations were accepted by a meeting of the full Council on 13th January, 1976. As a result, notice...
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