“6 The first stage in the procedures for making an alternative proposal set out in section 6(4) and (5) of the 2007 Act is for the Boundary Committee to formulate a draft alternative proposal. In deciding what steps it needs to take to do this, the Committee should have regard to, among other issues, the matters on which the Secretary of State has requested it to advise, and the dates she has specified by which the advice is to be received. In any event those steps should include the Committee having a dialogue with potentially affected local authorities about possible unitary solutions for the area concerned, and requesting local authorities as necessary to provide it, by such date as it may specify, with such information as it may reasonably require in order to formulate the alternative proposal. 7 Any dialogue with, or request for information from, a local authority should not involve the authority having to incur significant expenditure. The process of dialogue and information seeking should be proportionate to the Committee’s needs for formulating such alternative proposal as it considers appropriate, having regard to the Secretary of State’s request for advice. Accordingly, this process should not involve some general invitation to all potentially affected local authorities to provide their own worked up proposals with full business cases containing detailed evidence against the 5 criteria. It will be for the Committee to obtain such information as it may reasonably require to compile the necessary rationale for any draft alternative proposals that it formulates. 8 The Committee’s formulation of any draft alternative proposal should not be a process limited to assessing and choosing proposals, or ideas, put forward by local authorities or other interested parties. Accordingly, whilst it is recognised that the local authorities concerned and others may have views on, ideas about, and seek to promote, particular unitary solutions, a draft alternative proposal made by the Committee may be, if the Committee believes this to be right, entirely different from anything that local authorities or other stakeholders have suggested or sought to promote. 9 The procedure that the Committee is required to follow by section 6(4) and (5) of the 2007 Act provides the opportunity for persons who may be interested in a draft alternative proposal to make representations to the Committee which it must take into account. This should ensure that all interested parties will have the opportunity to contribute to the Committee’s formulation of any alternative proposal made by it to the Secretary of State. Such representations may assist the Committee to make judgements about and fully assess the merits of an alternative proposal, and hence to decide whether to make it to the Secretary of State. The volume of representations for or against a proposal should not of itself be considered to provide a definitive view of that proposal’s merits.”
“The matter is put in a number of ways, but the essential proposition can be summarised quite shortly. Mr Findlay submits that the East/West/Ipswich concept has been unfairly excluded from being published as a possible candidate for recommendation by the Boundary Committee to the Secretary of State because (a) for the whole of the time until12 February 2009 (see paragraph 75 above) the Committee had been working on the erroneous basis that only one proposal could be published; (b) throughout that time it did not engage in a fit and proper dialogue about the East/West/Ipswich concept and any reservations it had about it; and (c) when it regarded itself as free from the “one proposal” constraint, it failed properly and fairly to evaluate the concept and engage in any dialogue about it. It is argued that at no stage has the Committee afforded the proponents of the concept the opportunity to address even the gist of the apparent reservations it had about its ability to meet the Secretary of State’s criteria.”
“I am unable to accept this. Plainly, the Guidance is not to be construed like a statute, but any normal understanding of the two expressions ‘dialogue’ and ‘information-gathering’ does involve a sense of two different processes. There may, of course, be an overlap, particularly in the sense that information may be conveyed within the context of a dialogue. But a dialogue connotes a bilateral exchange of thoughts or ideas and not merely the provision of factual information. That proposition is derived from the ordinary understanding of language. But it is reinforced by the context in which the two expressions operate here. It cannot surely have been intended by the Secretary of State’s Guidance that a local authority could only provide what might be termed “hard” factual information to the Committee at the pre-consultation stage. It may well be that the intention was not to invite “worked up examples with full business cases containing detailed evidence against the 5 criteria”, but where an apparently thought-through proposal is advanced by a local authority, whether in relatively summary form or at a more advanced stage of presentation, it defies common sense for there not to be a discussion or dialogue about it if the objective is to decide, in a situation where there may be doubt, whether a particular criterion of the Secretary of State is likely to be met. The nature of the dialogue may, of course, vary depending on the nature of the proposal being advanced and the status of the party advancing it. But any self-denying ordinance on the part of the Committee so far as true discussion and true communication of views and ideas is concerned must, I would have said, be wrong. Equally, there must be true engagement with the issues: it would not, in my view, be achieved by the Committee simply receiving the representations, not engaging them and not discussing any doubts that may arise and simply saying that an open mind is being kept.”
“28. One of the issues that the Commission had to decide in this case was the question of eligibility. If the Commission had concluded that the application fell down because it did not meet the eligibility criteria then in my judgment it would be necessary for the Commission to point out in their decision why the application did not comply with the eligibility criteria. However, when considering the question of whether or not to grant an application which is eligible, differing situations can exist. There may be situations where the Commission conclude: “We reject the application, although it is eligible, on a particular ground.”
“In my judgment, subject to other issues such as those raised by the other grounds of challenge in this case, the Secretary of State was entitled to proceed in that way. Other things being equal, it was permissible for him to narrow the range of options within which he would consult and eventually decide. Consultation is not negotiation. It is a process within which a decision-maker, at a formative stage in the decision-making process, invites representations on one or more possible courses of action. In the words of Lord Woolf MR in ex parte Coughlan[2001] QB 213 at para 112, the decision-maker’s obligation “is to let those who have potential interest in the subject-matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this.”
“What, then, is the unfairness which is alleged in the present case? It is submitted that, one way or another, Gatwick will have to be considered in the future and that is obvious. For example, in the event of a future planning application in relation to Cliffe, Medway/Kent, as objectors, would seek to promote Gatwick as an alternative but, at that stage, the metaphorical dice would be loaded against them. They would be arguing against Government policy enshrined in the White Paper. It would be “very difficult if not impossible” to persuade an Inspector, or even more so, the Government itself, to go against such weighty policy. On the other hand, if they were enabled to make their representations in the course of the present consultation process that would provide the only opportunity for them to be considered on a level playing field. Similar arguments are advanced on behalf of Mead/Fossett in relation to Stansted and, more obliquely, on behalf of Essex. In a nutshell, therefore, the alleged unfairness is in being prevented from making representations about Gatwick at a time and stage when the consideration of such representations is not constrained by adopted Government policy. It cannot be doubted that the Claimants are disadvantaged by the exclusion of Gatwick options from consideration in the consultation process. The question is whether that process is tainted with unfairness as a result of that exclusion. … It is common ground that the issue of Gatwick will probably re-emerge, if only as a proffered alternative solution. The question really becomes this: knowing that the Claimants will probably and legitimately wish to advocate Gatwick as an alternative solution at a later stage in the decision-making process, is it procedurally unfair of the Secretary of State to operate the consultation process in such a way that the Claimants lose their only real opportunity to present their case on Gatwick without there being in place a Government policy which, realistically, will present them with an insurmountable hurdle? In my judgment, when one considers the decision-making process as a whole, the answer is that to operate the consultation process in that way is indeed procedurally unfair. Accordingly, this ground of challenge succeeds.”