Wednesbury Corporation v Ministry of Housing and Local Government

JurisdictionEngland & Wales
JudgeTHE MASTER OF THE ROLLS,LORD JUSTICE HARMAN
Judgment Date03 December 1964
Judgment citation (vLex)[1964] EWCA Civ J1203-1
CourtCourt of Appeal
Date03 December 1964
The Mayor, Aldermen and Burgesses of the Borough of Wednesbury and Others
Plaintiffs Appellants
and
The Minister of Housing and Local Government
Defendant Respondent

[1964] EWCA Civ J1203-1

Before:

The Master of the Rolls (Lord Denning)

Lord Justice Harman and

Lord Justice Salmon

In The Supreme Court of Judicature

Court of Appeal

From Mr. Justice Winn

MR J. T. MOIONY, Q. C. and MR P. H. B. LAYFLELD (instructed by Messrs Jaques – Co.) appeared as Counsel for the Appellants.

THE ATTORNEY-GENERAL (Sir Elwyn Jones, Q. C.), SIR JOHN HOBSON and MR NIGEL BRIDGE (introduted by the Solicitor, Ministry of Housing and Local Government) appeared as Counsel for the Respondent.

THE MASTER OF THE ROLLS
1

In 1958 Parliament decided that the local government of this country needed to be reorganized. They appointed a Local Government Commission for the purpose. The very first review which the Commission undertook was of the West Midlands area, commonly called the Black Country. This is one of those great urban masses which have become known as "conurbations". Nearly two and a half million people live there. There are six County Borough which govern themselves in "one-tier" administration. There are also 17 Boroughs and Urban Districts which are governed in a "two-tier" system. The top tier is the County itself, governed by the County Council. The second tiers are these Boroughs and. Urban Districts governed by District Councils.

2

In 1960 the Local Government Commission made their review of this West Midlands area. They held their statutory conferences with all the local authorities. In May, 1961, they presented their proposals to the Minister of Housing and Local Government, They proposed that the Black Country should be reorganized into five great County Boroughs, namely, Dudley, Smethwick, Walsall, West Bromwich and Wolverhampton; and that many of the smaller Brought and District Councils should be swallowed up by one or other of these large County boroughs. The proposals involved the extinction of the Boroughs of Wednesbury and Bilston, and of the Urban Districts of Darlaston, Willenhall and Sedgley. These five objected strongly to the proposals and determined to fight to the death. In view of their objections the Minister, as was his duty, caused a local inquiry to be held into their objections. Under Section 23(2) of the Local Government Act of 1958 the Minister appointed Sir Edward Ritson, Sir Laurence Watkinson, and afterwards Mr. Tetlow, to hold the Inquiry. The Inspectors held their Inquiry between October, 1961, and February, 1962, a period of three and a half months. They sat on nearly forty days. There were some supporters of the proposals and many objectors. On 26th March, 1962, the Inspectors made their report to the Minister.

3

On 30th July, 1962, the Minister told the objectors that he had decided to accept the proposals of the Commission. In November, 1962, he said he was going to prepare an order to give effect to this decision and he was going to lay the order before Parliament in accordance with the statute. Then these five local authorities, who had the sword of Damocles hanging over them, attempted to escape its fall. They brought proceedings in the Courts of Justice, On 24th May, 1963, they brought this action against the Minister, in which they claimed a declaration that the Inquiry, which was held by these three Inspectors, did not constitute a valid Inquiry under the Act. They asked the Court to declare that the Minister could not make an order, or lay it before Parliament, until a proper and sufficient local Inquiry was held. If they are right in this action, it means that there must be another local Inquiry and the whole thing has to be gone over again, and much time must elapse.

4

In the statement of claim the five local authorities set out their reasons for saying the local Inquiry was invalid. They make two principal complaints:- First, the failure of the Inspectors to make recommendations to the Minister, The five local authorities say that the Inspectors did not make any recommendations to the Minister as to whether the proposals were desirable or not in the light of the objections. The five took this point before the Inspectors themselves and this is what the Inspectors said about it: "We stressed that the Inquiry was one into objections, that is objections to the Commission's proposals. Its purpose was to hear and to report to the Minister as faithfully as possible the nature of the objections raised by local authorities and other persons and bodies. It would be part of our task to sort out the arguments put to us and to assess their relative weight. Important as this purpose was, the limitations of the Inquiry must be recognized. It was not, we emphasized, an Inquiry into the Commission's proposals. The Commission were not present to explain or support theirproposals – they had set out their conclusions in their report. It was not our duty, therefore, to recommend to the Minister whether the proposals should or should not be accepted". Then the Inspectors went on to say: "The restricted nature of the Inquiry met with criticism by counsel who, in particular, regretted that we were not empowered to make recommendations; they requested that their views be conveyed to the Minister. It is, of course, outside our province to comment on this ". That is the first complaint. In substance it comes to this: that the Inspectors said they would not make recommendations, and took it as if it were their directive.

5

The second head of complaint was this: The unwillingness of the Inspectors to consider alternative proposals. The five local authorities say that the Inspectors were unwilling or disinclined to go into the alternative proposal; made by them. They took this point also before the Inspectors, and this is -what the Inspectors said about it: "A further complication arose regarding alternative proposals for the reorganization of the local government of the Black Country that were presented to us. We stated at an early stage of the Inquiry that we could report only on objections to the Commission's scheme and that it was net open to us to hear evidence on alternative proposals for the re-organization of the Black Country". After one or two observations they go on to says "It was strongly pressed on us that our view was too narrow a one; these proposals should be seriously considered and explained because fundamentally they were objections to the Commission's scheme". these schemes and cross-examination thereon without seeming to be starting a new inquiry on the proper organization of the Black Country, a task which was clearly outside our terms of reference. (It is worth noticing in passing the words "terms of reference". The objectors say that indicates that the Minister had given directions to the Inspectors). We finallydecided that the best course would be to permit the authorities concerned to expound their cases and then report their arguments to the Minister to enable him to consider whether there was a prima facie case for investigating their merits mere fully – presumably by means of another full scale inquiry". It appears, therefore, that the Inspectors did go into the alternative proposals. Indeed they reported on then. So it does not look as if there is much substance in the second complaint. The principal complaint is, as I see it, that the Inspectors did not make any positive recommendations in their report or cone to their own conclusions. They set out the arguments in favour of the proposals, and against them, and left the decision to the Minister.

6

Such being the nature of the complaints in the action, the question at the moment arises on discovery: What documents should the Ministry disclose to the plaintiffs in pursuance of their duty (which now can be enforced by the Courts) to make discovery of documents which relate to the matters in question in the action? In the first place the Ministry made a list of documents. They set out in a schedule certain documents which produce them on the ground that it would be injurious to the public interest to produce then. Their reason was because each such document "belongs to a class which it is necessary for the proper functioning of the public service to withhold from production" These are the documents: "Ministry of Housing and Local Government file (giving its number) containing the following departmental communications, namely (i) Departmental brief for the guidance of Inspectors appointed by the Minister to hold local inquiries under Section 23 of the Local Government Act, 1958, and (ii) Departmental brief for the guidance of the Inspectors appointed to hold the local inquiry into the objections to the proposals of the Local Government Commission for England in so far as they affect the Black Country, and (iii) Correspondencebetween officials of the ministry of housing and Local Government and the Inspectors appointed to hold the local inquiry into the objections to the proposals of the Local Government Commission for England in so far as they affect the Black Country". In short, the Ministry claimed privilege for the departmental brief and instructions which they gave to the Inspectors. The question is whether this claim of privilege is well taken and ought to be upheld.

7

The Minister, Sir Keith Joseph, himself made an affidavit in support of this objection. (I pause to notice that it was made before the recent decision of this Court in Re Grosvenor Hotel). He said in the first paragraph: "I personally examined and carefully considered the documents". Secondly, he said: "I formed the opinion that on the grounds of public interest the documents in these files ought not to be produced because they belong to classes of documents which it is necessary for the proper functioning of the public service to withhold from production". The first class he described as: "Departmental...

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