R (on the application of Forest Heath District Council and others) v Electoral Commission, Boundary Committee for England

Local government reorganisation – Boundary committee – Pre-consultation – Proposal for single-tier unitary authority – Secretary of state asking appellant to advise on alternative proposal to be assessed against five criteria and issuing guidance – Appellant failing to consult respondent councils before publishing draft proposals for reorganisation – Whether use of “dialogue” in guidance obliging appellant to debate perceived difficulties – Whether appellant proceeding unfairly – Appeal allowedIn 2006, the secretary of state invited local authorities to submit proposals for unitary local government to be assessed against five criteria in anticipation of the Local Government and Public Involvement in Health Act 2007. Part I of the Act concerned the replacement of existing two-tier district and county council structures with a single-tier of unitary authorities.In 2008, the secretary of state asked the appellant statutory committee to advise on the future of local government in Suffolk. By March 2008, four concepts had been identified by local authorities. The respondent local authorities proposed an east/west/Ipswich split at the pre-consultation stage, before the publication of draft proposals. In July 2008, the appellant published a single draft proposal and, following representations, published further draft proposals (FDPs), in March 2009, that were substantially the same as those previously submitted.The respondents applied for judicial review of the decision to publish the FDPs on the ground that the east/west/Ipswich concept had been unfairly excluded from publication as a possible recommendation because, inter alia, the appellant had failed properly and fairly to evaluate the concept and engage in dialogue. The judge concluded that the appellant should have discussed with the respondents any reservations that it had about whether the concepts met the secretary of state’s criteria before publishing the draft proposals and FDPs. Accordingly, the judge made an order quashing the FDPs. On appeal, the appellant’s the main questions for the court were whether: (i) in the statutory context taken as a whole, the secretary of state’s guidance and its use of the word “dialogue” obliged the appellant to debate perceived difficulties with schemes proposed during the pre-consultation stage, when the appellant was formulating its own draft alternative proposals; and, if not, (ii) it was unfair for the appellant to proceed as it did.Held: The appeal was allowed.(1) The word “dialogue” did not extend to consultation during the pre-publication formulation stage and there was no doubt that the appellant had had a dialogue with the respondents. It had explained the process and invited and received suggested schemes for unitary local government and asked a series of questions on the proposed schemes to which the respondents had replied.The judge had given the word “dialogue” a weight and significance that, in its full context, it could not bear. The secretary of state had received pursuant to the statute a proposal for unitary local government, which she was not minded to implement. She had asked the appellant for advice as to whether there could be one or more alternative proposals that were likely to meet the five criteria under the statutory powers. Any such proposal needed to be formulated and the appellant should seek the views of interested local authorities, which would constitute a dialogue. The guidance did not require the appellant to discuss with local authorities any reservations it might have as to whether proposals were likely to meet the criteria. Its task was to hold such discussion and seek information as it reasonably required in order to formulate alternative proposals that it considered appropriate. The appellant was not obliged to limit itself to proposals put forward by local authorities.Pursuant to section 6(4) of the 2007 Act, the requirement was to publish a draft alternative proposal and to enable persons who might be interested to be informed of that draft so that they could make representations. It was necessary to publish, not just what was proposed by way of structural change, but also a summary of the reasons for that proposal and, in particular, why the change was considered to meet the secretary of state’s criteria. Neither the statutory structure nor the guidance extended to the formulation stage, nor did they require the appellant to consult at that stage about proposals that they were not considering further: R (on the application of Breckland District Council) v Boundary Committee [2009] EWCA Civ 239; [2009] PLSCS 108 considered.(2) In relation to fairness, the process was one of formulation, not consultation. If there was adequate dialogue, there was no obligation to explain to local authorities in advance of the publication of the draft alternative proposals the internal considerations that led to those proposals. The purpose of the consultation was to obtain views about the proposals that the appellant was considering putting forward. Those who had proposed different concepts were able to make representations to the effect that they had greater merit than any of those published for consultation by the appellant. The appellant had to address such representations with an open mind and might be persuaded that a different concept was preferable. At the consultation stage, the appellant’s obligation was to let interested parties know in clear terms what the proposals were and why they were under positive consideration, providing enough information to enable them to make an intelligent response. That might mean that those who had vigorously, but unsuccessfully, promoted a concept in detail at the formulation stage might have little new to say at the consultation stage but that did not render the consultation process, much less the entire procedure, unfair as a matter of substance or procedure: R v North East Devon Health Authority, ex parte Coughlan [2001] QB 213 considered; R (on the application of Medway District Council) v Secretary of State for Transport, Local Government and the Regions [2002] EWHC 2516 (Admin); [2003] JPL 583; [2002] 49 EG 123 (CS) distinguished.Richard Gordon QC and Andrew Henshaw (instructed by the Treasury Solicitor) appeared for the appellant; James Findlay QC and Sophie Weller (instructed by Sharpe Pritchard) appeared for the respondents; Tim Buley (instructed by the Treasury Solicitor) appeared for the interested party.Eileen O’Grady, barrister