R (on the application of Breckland District Council and others) v Boundary Committee for England

Local government reorganisation – Consultation – Part I of Local Government and Public Involvement in Health Act 2007 – Proposal for single-tier unitary authority – Defendant asked to advise on alternative proposal to be assessed against five criteria – Whether statutory duty to consult – Whether permissible to consider affordability criteria at later stage after formulation of draft proposal – Whether alternative proposal to be considered against retention of status quo – Claim dismissedThe claimants were local authorities in Norfolk. The defendant was a statutory committee responsible for reviewing local government structure. In 2006, the secretary of state invited local authorities to submit proposals for unitary local government to be assessed against five criteria, including affordability, in anticipation of the enactment of the Local Government and Public Involvement in Health Act 2007. Part I of the Act dealt with the replacement of existing two-tier structures of district and county councils with a single tier of unitary authorities.Norwich City Council proposed a unitary authority covering its existing area. Following assessment, the secretary of state announced that she was minded to refuse that proposal on the ground that it was unlikely to meet all five criteria. She requested the defendant, under section 4(2) of the 2007 Act, to advise on an alternative proposal for a single tier of local government for Norwich, Norfolk and part of Suffolk that could in aggregate deliver on the five criteria and to provide guidance on that exercise.In July 2008, following consultation with the claimants, the defendant published a report setting out its draft alternative proposal for a unitary authority comprising the existing county of Norfolk and the Lowestoft area of Suffolk. The report stated that affordability had not been assessed, owing to the number of alternative patterns that had been suggested and the resource cost to local authorities in providing financial information on them all. The defendant requested that financial information and representations on the draft proposal be provided by September 2008. It further stated that the retention of the status quo would be recommended only if no unitary pattern could be identified that met the five criteria.In judicial review proceedings, the claimants contended that the defendant had failed to comply with a statutory duty to consult imposed by section 6 of the 2007 Act and had specifically failed to: (i) consider or consult on affordability along with the other criteria; or (ii) have adequate regard to the status quo.Held: The claim was dismissed. (1) Section 6 of the 2007 Act imposed a duty upon the defendant to consult. The statutory language imposed a clear duty to: (i) seek views at an early stage; (ii) include sufficient reasons to enable an informed response; (iii) provide adequate time for representations; and (iv) take representations into account in a conscientious manner. Given the issues at stake, namely the future of representative bodies and the institutional and social patterns associated with them, the court was entitled to perform its review function with enhanced scrutiny.(2) Although the defendant was obliged, by section 5 of the 2007 Act, to have regard to the guidance issued by the secretary of state, it was not required to follow that guidance slavishly. The guidance required the defendant to make a judgment concerning the capacity of particular unitary arrangements, if implemented, to meet the five criteria, but it did not specify the stage at which this had to be done, save that it was to be done in order to provide the advice sought by the request. That stage had not been reached in the present inquiry. The defendant had not been obliged to reach a decision on affordability by the time of the draft proposal, but would satisfy the guidance so long as it reached a judgment on affordability by the date upon which its advice was to be given. The defendant had not failed to treat affordability as a relevant consideration and had met its duty to afford, to the interested parties, sufficient information for making proposals on affordability. Any challenge based upon a lack of sufficient time for submitting representations on affordability was premature given that the time for consultation could be extended.(3) The defendant would take into account representations received in support of the retention of the existing two-tier system when discharging its section 6(5)(a) duty. Moreover, such representations were relevant to an assessment of whether any particular pattern of unitary local government fulfilled one of the five criteria, namely whether it carried a broad cross-section of support. However, the defendant was not obliged to go further by comparing the merits of the proposed unitary structure against the existing two-tier system. Although the 2007 Act did not impose unitary local government on a county, it contained a presumption in favour of such government, and any alternative proposal made by the defendant had to be a single-tier structure. The Act neither expressly nor implicitly required the defendant to measure any proposal against the existing two-tier structure.Timothy Straker QC and Andrew Sharland (instructed by Knights Solicitors, of Tunbridge Wells) appeared for the claimants; Michael Beloff QC and Gerard Clarke (instructed by the legal department of the Electoral Commission) appeared for the defendant; James Eadie QC and Catherine Callaghan (instructed by the Treasury Solicitor) appeared for the interested party, the secretary of state for communities and local government.Sally Dobson, barrister