Beale & Anor, R (on the application of) v London Borough of Camden [2004] EWHC 6 (Admin)

Case No CO/6212/2003

[2004] EWHC 6 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Thursday 8 January 2004

Strand,

London, WC2A 2LL

Before

THE HONOURABLE MR JUSTICE MUNBY

Between

R (on the application of ALBERT BEALE and LESLEY CARTY)Claimants

LONDON BOROUGH OF CAMDENDefendant

(Transcript of the Handed Down Judgment of

Smith Bernal Wordwave Limited, 190 Fleet Street

London EC4A 2AG

Tel No: 020 7421 4040, Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

Ms Kate Markus (instructed by Leigh Day & Co) for claimants

Mr Ashley Underwood QC and Mr Kelvin Rutledge (instructed by the Borough Solicitors Branch) for defendant

Judgment

Mr Justice Munby :

[1]Central government policy is that local authorities must improve their stock of council houses so that by 2010 all social housing tenants have homes meeting the “decent home standard”. This will obviously cost a lot of money. The London Borough of Camden (“Camden”) estimates that it will cost it £283 million more than it has available. There are various methods by which local authorities can in principle comply with central government’s objectives and raise the necessary money. One is by means of a Large Scale Voluntary Transfer (“LSVT”). Another is by means of a Private Finance Initiative (“PFI”). Another – which has been chosen by Camden following an options appraisal which concluded that the LSVT and PFI options were not available to it and that there was no realistic chance of either borrowing the £238 million commercially or persuading the government to provide funds directly to it – is by means of an entity called an Arms Length Management Organisation (“ALMO”), which involves the transfer to the ALMO of the management, but not the ownership, of the local authority’s council houses. Such a transfer to an ALMO is provided for by section 27 of the Housing Act 1985 and requires the approval of the Secretary of State (“the SoS”), in practice the approval of the Office of the Deputy Prime Minister (“ODPM”).

[2]In March 2003 ODPM published Guidance on Arms Length Management of local authority housing (“the ODPM Guidance”) which makes it clear (see paragraph 4.8(a)) that in reaching decisions on section 27 applications the SoS will wish to be satisfied about a range of issues, including compliance with key principles in the ODPM Guidance, and that local authorities when applying for section 27 approval “must” complete a questionnaire in the form set out in Annex C to the ODPM Guidance.

[3]One of the key principles in the ODPM Guidance, and the one which lies at the heart of the current litigation, is that set out in paragraphs 5.1 and 5.2:

“5.1 Key aims of the ALMO initiative are to give tenants the opportunity to play a greater role in the management of their homes, and to ensure that services are responsive to their needs. … Tenants should have been closely involved throughout the appraisal process leading to the choice of the ALMO option. Local authorities seeking ALMO funding and s 27 approval must … show that the ALMO proposals have the support of a majority of tenants. 5.2 Authorities may choose to ascertain tenants’ views through a ballot, though the Secretary of State is prepared to accept other clear evidence of their support. To ensure an informed choice, authorities should give to all tenants and leaseholders information about and opportunity to comment on: • the reasons for setting up the arms length body; • the functions to be transferred and the continuing role of the local authority; • the composition and status of the arms lengthy body and its Board, including the selection and role of the tenant Board members; • tenants’ and leaseholders’ rights; • performance standards for the arms length organisation.”

Question 11 in the questionnaire set out in Annex C to the ODPM Guidance reads in material part as follows:

“Please summarise how tenants and leaseholders of dwellings for which the ALMO will be responsible have been consulted about the ALMO proposals. Please state what the Council has done to establish whether the majority of tenants and leaseholders fully appreciate the implications of these proposals … ” • the reasons for setting up the arms length body; • the functions to be transferred and the continuing role of the local authority; • the composition and status of the arms lengthy body and its Board, including the selection and role of the tenant Board members; • tenants’ and leaseholders’ rights; • performance standards for the arms length organisation.”

[4]So what the ODPM Guidance requires is that those affected should “fully appreciate the implications” of the local authority’s ALMO proposals and so be able to make “an informed choice”. On the other hand it is to be noted that what they are to be given “information about and opportunity to comment on” are the matters specified in paragraph 5.2 and that these, although they include the “reasons for setting up” the ALMO, do not include, as it were, any reasons there may be for not setting up an ALMO.

The proceedings

[5]It is apparent that the government’s policy of promoting ALMOs is seen in many quarters as controversial. There is a national opposition campaigning under the slogan Defend Council Housing and there is opposition in Camden campaigning under the name Camden Defend Council Housing or Camden DCH. The main plank of the Camden DCH campaign is clear. Camden DCH says that ALMOs are “two-stage privatisation”. Its campaign slogans are “SAY NO TO ALMOs” and “Say NO to privatisation”. It has consistently identified what it describes as “8 reasons to reject ALMOs”. The first three (as set out in the June 2003 issue of a broadsheet published by Camden DCH) are:

“1 This government wants to privatise council housing – ALMOs are a key part of their strategy. 2 Camden already has nearly ⅔rds of the money it needs – there is no urgent reason to go ALMO. 3 Elected councillors will no longer be accountable for what happens to our homes. It’s a recipe for excuses.”

[6]I need go no further. It is apparent that ALMOs involve political and social issues which are seen in some – for all I know in many – quarters as being of very great importance. But these are, as I have said, political and social issues: they are not legal issues. They are issues to be resolved by democratically elected and democratically accountable politicians – in the first instance by Camden councillors and in the final analysis by the SoS – not by a judge. The fact is that Parliament has chosen to confer the relevant power of approval under section 27 of the 1985 Act on the SoS, not on the court. My duty is to recognise the will of Parliament and not to seek in any way to usurp a power which Parliament has chosen to confer on an accountable minister rather than on an unaccountable judge.

[7]I propose therefore to say nothing whatever about either the merits or demerits of ALMOs. They are, indeed, matters on which the court has – can have – no views of any kind. Nor, save to the extent that is absolutely necessary to enable me to decide the very narrow legal questions which are put before me, do I propose to enter into any description, let alone any analysis, of the various arguments which have been deployed on the one side by Camden and on the other by Camden DCH. It would be neither wise nor helpful for a judge to say anything that might hereafter be relied upon, however inappropriately or even mistakenly, as supporting one or other side of the political and social argument.

[8]The claimants, who as I understand it are prominent supporters of Camden DCH though they bring the present proceedings personally and not in any representative capacity, issued an application on 20 November 2003 seeking permission to apply for judicial review of what were said to be Camden’s:

“Failure … to provide to its tenants and leaseholders any or any sufficient information setting out the facts and/or arguments against the transfer of the management of … Camden’s housing stock to an [ALMO]” and also of its: “Proposal … to ballot tenants and leaseholders with the question: “Camden Council proposes to set up a Council owned Arms Length Management Organisation (ALMO) to manage and improve its housing. Do you agree with this proposal: Yes/No?”

[9]The claimants seek declaratory orders that:

“[Camden] has failed to date to carry out a lawful consultation exercise or to provide voters with such information as is reasonably required to enable them to exercise an informed choice in the forthcoming ballot on the proposed ALMO” and that: “The proposed ballot question is biased and unlawful.”

The claimants also sought, but McCombe J on 24 November 2003 declined to grant and the claimants no longer seek, an injunction:

“preventing [Camden] from balloting tenants and leaseholders until: (a) a two-sided A4 document containing the views of those opposing the ALMO, printed in one colour and black … has been circulated by [Camden] to all council tenants and leaseholders in Camden; (b) the ballot question has been amended so as to delete the words “Council owned” and “and improve”.”

[10]By the time the matter came on for hearing before me on 10 December 2003 the ballot had in fact commenced. It has since concluded, though as I understand it the ballot boxes have not been opened pending the handing down of this judgment.

The consultation process

[11]The claimants’ case as put forward on their behalf by Ms Kate Markus is that although Camden has circulated a vast quantity of information to voters this provides almost no information that could enable voters to understand the arguments against an ALMO. She says that Camden DCH is unable to compete with Camden’s resources and access to voters. It has done its best with limited resources but has reached, so it is said, only a fraction of the voters. Camden’s materials, by contrast, are made available to all. Camden, she says, has not enabled a balanced debate to take place so that tenants and leaseholders can make an informed choice. It has, the claimants say, conducted a propaganda campaign designed to secure a Yes vote. Its approach has been to stifle the debate and, it is said, to take all possible steps to swing the vote in support of the ALMO.

[12]The claimants’ fundamental case is described as being that:

“Camden is required to ensure that the case against the ALMO is made available to all voters and is not in the process so marginalised that it has no realistic prospect of being noticed or given any serious consideration … the information provided to voters should be balanced”

. Ms Markus stresses that the claimants’ challenge is not limited to a challenge upon the rationality of Camden’s view that the consultation process is fair. It also rests on complaints that the consultation process has been unfair and unlawful.

[13]Camden’s case in answer is summarised on their behalf by Mr Ashley Underwood QC and Mr Kelvin Rutledge, who assert that, whilst there is no obligation to inform tenants and leaseholders of the disadvantages of an ALMO, Camden has in fact engaged in a consultation process by which, as they would have it, the arguments for the ALMO have been fairly put and those against it have been fully canvassed.

The consultation process – the legal context

[14]Ms Markus relies in particular, as establishing the legal duties for which she contends, upon the principles which, she says, are to be found in: i) The decision of the Supreme Court of Canada in Libman v The Attorney General of Quebec

[1997] 3 SCR 569

. ii) The decision of the Court of Appeal in R v North and East Devon Health Authority ex p Coughlan

[2001] QB 213

. iii) The ODPM Guidance and associated ministerial statements. iv) The Code of Recommended Practice on Local Authority Publicity issued by the SoS on 15 August 1988 (DOE Circular 20/88) and revised by the SoS on 2 April 2001 (DETR Circular 06/2001) (“the Code”). v) The decision of the District Auditor (Mr Richard Lott) dated May 2003 in relation to objections under sections 17 and 18 of the Audit Commission Act 1998 in respect of a LSVT by Bath and North East Somerset Council. I shall deal with each of these in turn.

[15]In Libman v The Attorney General of Quebec

[1997] 3 SCR 569

the Supreme Court of Canada had to consider a constitutional challenge to the validity of legislation which imposed spending limits on referendum campaigns and was therefore said to infringe the freedoms of expression and association guaranteed to the appellant by sections 2(b) and 2(d) of the Canadian Charter of Rights and Freedoms. Accepting that there had been prima facie infringements of the appellant’s rights the Supreme Court of Canada addressed the question of whether those infringements could be “justified in a free and democratic society” by reference to the test which it formulated at para [38] as follows:

“Thus, the Court must first ask whether the objective the statutory restrictions seek to promote responds to pressing and substantial concerns in a democratic society, and then determine whether the means chosen by the government are proportional to that objective. The proportionality test involves three steps: the restrictive measures chosen must be rationally connected to the objective, they must constitute a minimal impairment of the violated right or freedom and there must be proportionality both between the objective and the deleterious effects of the statutory restrictions and between the deleterious and salutary effects of those restrictions.”

[16]It was in the course of addressing that test of constitutionality that the Supreme Court of Canada made the observations at paras [47] and [54] upon which Ms Markus particularly sought to rely:

“[47] … The principle of electoral fairness flows directly from a principle entrenched in the Constitution: that of the political equality of citizens. If the principle of fairness in the political sphere is to be preserved, it cannot be presumed that all persons have the same financial resources to communicate with the electorate. To ensure a right of equal participation in democratic government, laws limiting spending are needed to preserve the equality of democratic rights and ensure that one person’s exercise of the freedom to spend does not hinder the communication opportunities of others. Owing to the competitive nature of elections, such spending limits are necessary to prevent the most affluent from monopolizing election discourse and consequently depriving their opponents of a reasonable opportunity to speak and be heard. Spending limits are also necessary to guarantee the right of electors to be adequately informed of all the political positions advanced by the candidates and by the various political parties. Thus, the principle of fairness presupposes that certain rights or freedoms can legitimately be restricted in the name of a healthy electoral democracy. Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions so that election discourse is not dominated by those with access to greater financial resources. [54] … spending must be restricted to preserve a balance in the promotion of the options and favour an informed and truly free exercise of the right to vote … the regulation of referendum spending pursues one of the objectives underlying freedom of expression, namely the ability to make informed choices.”

[17]Now these are obviously highly relevant and extremely important considerations in evaluating whether legislation restricting freedom of expression passes constitutional muster. But that is the context in which the Supreme Court of Canada said what it did. It was not, as it seems to me, seeking to identify or establish any common-law principle. It certainly was not saying that a consultation exercise, ballot or referendum is unlawful or actionably unfair unless it is conducted in such a way as to ensure that electors are reasonably and adequately informed of all the possible choices and that those promoting different views are given a reasonable opportunity to present their positions.

[18]Libman does not in my judgment assist Ms Markus. Read as she would have me read it Libman proves too much. It is one thing to say (and this is the issue the Supreme Court of Canada was considering) that a particular legislative scheme is rationally connected to the legitimate and, no doubt, highly desirable objective of ensuring that elections are fair and equitable, and that the means chosen are proportional to that objective. It is a very different thing to say that an election which does not meet such standards is ipso facto unlawful. After all, and as Ms Markus properly conceded, there is no legal obligation as such on Camden to give “air time” to the views of Camden DCH, let alone to provide Camden DCH, merely because it lacks Camden’s financial and other resources,with sufficient funds or facilities to enable it to promote its views with the same intensity and in the same glossy format as Camden with its greater resources is able to.

Article 10 of the European Convention

for the Protection of Human Rights and Fundamental Freedoms, as I commented in R (Smeaton) v Secretary of State for Health (No 2)

[2002] EWHC 886 (Admin)

[2002] 2 FLR 146

, at para [419], “does not … require the public subsidy of campaigning free speech.”

[19]Nor, in my judgment, does R v North and East Devon Health Authority ex p Coughlan

[2001] QB 213

provide Ms Markus with any greater assistance. She points to the statement in para [108] that:

“whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must … include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response.”

With that I have absolutely no difficulty but, as Mr Underwood points out, there is nothing here to suggest that consultation involves as a legal requirement an articulation of both sides of the argument. Proper consultation requires sufficient reasons to be given for the particular proposals to enable those consulted to give intelligent consideration and an intelligent response to the proposals. But it is not said that consultation requires sufficient information to be given about any objections to the proposals to enable those consulted to give intelligent consideration and an intelligent response to the objections. On the contrary, as was said in para [112]:

“consultation is not litigation: the consulting authority is not required to publicise every submission it receives … Its obligation is to let those who have a 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.”

[20]I have already set out the key provisions in the ODPM Guidelines that Ms Markus relies upon. I do not see how they help her in mounting a challenge to the legality of what Camden has done. The ODPM Guidelines are not legal principles or statements of law: they are merely statements of the factors that the SoS will take into account in deciding whether or not to give his approval under section 27 of the 1985 Act and of the prerequisites that have to be met if he is to be persuaded to give his approval. Failure to comply with the ODPM Guidelines may imperil or even fatally prejudice a local authority’s application for section 27 approval. I fail to see, however, how such a failure – even if established – can, of itself, invalidate the consultation process as a matter of law or make it, as the claimants assert, unlawful.

[21]There is another reason why I cannot agree with the use Ms Markus seeks to make of the ODPM Guidelines. Parliament, as I have said, has chosen to confer the relevant power of approval under section 27 of the 1985 Act on the SoS, not on the court. It is for the SoS, at least in the first instance, to decide whether or not Camden has complied with the ODPM Guidelines. Were I at this stage of the process to be drawn into deciding whether or not Camden has done so, I would, as it seems to me, be usurping a power which Parliament has chosen to confer on the SoS. And I would be acting in a way that could very well embarrass not merely the SoS – who might find himself, were we to differ, in the dilemma of not knowing whether to follow his views or mine as to the meaning of the ODPM Guidelines – but also of the judge who would have to determine any challenge that might thereafter be made to the SoS’s decision.

[22]The ODPM Guidelines do not, in my judgment, define the criteria of what is a lawful, as opposed to an unlawful, consultation. Those criteria are to be found elsewhere. Nor are they to be found in the words uttered on a public platform on 27 November 2003 by the Minister for Housing, Mr Keith Hill, when, in answer to a question from the floor, he said:

“The law is entirely clear. Tenants need to be presented with equal information about the pros and cons of the various options for which they are being consulted. That is absolutely the principle that we as government and we as ministers conform to.”

Local authorities would no doubt be well advised to have regard to such a clear and apparently authoritative statement of how the SoS interprets and applies the ODPM Guidelines, but I do not see how it can help Ms Markus in the present proceedings. Ministerial statements on public platforms do not have the force of law. The law is made by Parliament. Ministers can make law only if authorised by Parliament to do so. The law is declared by the judges. Statements by ministers as to what the law is are no more determinative of the citizen’s rights than similar statements by anyone else. With the greatest of respect to Mr Hill – and I should make clear that it is the claimants, and the claimants alone, who seek to rely upon and make use of what he said – his statement of what he believes the law to be does not assist me. It is either correct or incorrect. If it is correct it adds nothing: if it is incorrect it is for present purposes irrelevant.

[23]I turn next to the Code. This does not have the force of law, so non-compliance is not inevitably fatal. But, and this is important, it is a code which Camden is required by section 4 of the Local Government Act 1986 to “have regard to” in coming to any decision on publicity. The Code is therefore “of great assistance for the purpose of determining how a reasonable authority would act” (R v Royal Borough of Kensington and Chelsea ex p Bayani

(1990) 22 HLR 406

at p 410 per Neill LJ) and as “providing a useful yardstick” (R v London Borough of Tower Hamlets ex p Ojo

(1991) 23 HLR 488

at p 494 per Steyn J).

[24]The most important of the provisions of the Code relied on by Ms Markus are to be found in paragraphs 16, 18 and 19:

“16 Publicity touching on issues that are controversial, or on which there are arguments for and against the views or policies of the council, is unavoidable, particularly given the importance of wide consultation whenever material issues arise. Such publicity should be handled with particular care. Issues must be presented clearly, fairly and as simply as possible, although councils should not over-simplify facts, issues or arguments. Again, it is unlikely that slogans alone will achieve the necessary degree of balance, or capture the complexities of opposing political arguments. 18 Publicity campaigns by local authorities are appropriate in some circumstances: for example, as part of consultation processes where local views are being sought … 19 Legitimate concern is, however, caused by the use of public resources for some forms of campaigns, which are designed to have a persuasive effect. Publicity campaigns can provide an appropriate means of ensuring that the local community is properly informed about a matter relating to the function of the local authority and about the authority’s policies in relation to that function and the reasons for them. But local authorities, like other public authorities, should not use public funds to mount publicity campaigns whose primary purpose is to persuade the public to hold a particular view on a question of policy.”

[25]It can be seen that there is, as Mr Underwood suggested, a certain tension between the last two sentences of paragraph 19 of the Code. Local authorities are told that they can legitimately publicise not merely their policies but also the reasons for their policies, and that they can do so even if those policies are politically controversial. Nor, as it seems to me, does paragraph 19 seek to prohibit such publicity merely because it may be “designed to have a persuasive effect”. The line is drawn at publicity campaigns whose “primary purpose” is to persuade.

[26]The other observation which is appropriate at this stage is that there is nothing in the Codeto suggest that a local authority is required to include in its publicity the opposing arguments of those with whom it disagrees. On the contrary, paragraph 20 defines the “main purpose” of local authority publicity as being:

“to increase public awareness of the services provided by the authority and the functions it performs; to allow local people to have a real and informed say about issues that affect them; to explain to electors and ratepayers the reasons for particular policies and priorities; and in general to improve local accountability.”

[27]Finally I should mention the decision of the District Auditor in the Bath and North East Somerset Council LSVT case. It is of little assistance because the crucial point appears to have gone by concession, the local authority in that case accepting (see paragraphs 65-66 of the District Auditor’s Statement of Reasons) that if publicity material was published, as the District Auditor found it had been, for the purpose of persuading the tenants to support, and vote in favour of, the proposed transfer, it was unlawful.

[28]It follows, as it seems to me, that the materials relied upon by Ms Markus provide but frail – in truth quite inadequate – support for her legal submissions. What is striking, though not of course determinative, is that Ms Markus has not been able to point anywhere in all the materials she has placed before me to any clear and simple statement of principle of the kind that one might expect to find if her fundamental proposition is correct. On the contrary, and as I have already observed, there is strikingly lacking, not merely in what the Court of Appeal said in Coughlan but also in the ODPM Guidance and in the Code, any indication that a local authority is required to set out in its publicity materials the case against its proposals. On the contrary (see paragraphs [4], [19] and [26] above), Coughlan, the ODPM Guidelines and the Code all identify the required content primarily by reference to the obligation to set out the nature of and the reasons for the local authority’s proposals.

[29]Mr Underwood submits, and I agree, that the primary legal requirement is to be found, in the absence of any regulations yet made by the SoS pursuant to section 27BA of the 1985 Act (see section 27BA(8)), in section 105(1) of the 1985 Act. This provides that a local authority:

“shall maintain such arrangements as it considers appropriate to enable those of its secure tenants who are likely to be substantially affected by a matter of housing management to which this section applies – (a) to be informed of the authority’s proposals in respect of the matter, and (b) to make their views known to the authority within a specified period; and … shall, before making any decision on the matter, consider any representations made to it in accordance with those arrangements.”

[30]Mr Underwood correctly draws attention to two features of this statutory requirement. In the first place, the local authority’s obligation is only to inform the relevant group (those “who are likely to be substantially affected”) of “the authority’s proposals”: there is no obligation as such to inform them of any objections to the local authority’s proposals or of any opposing points of view. Secondly, there is no obligation to send anything to those affected: the obligation is only to make “such arrangements as it considers appropriate to enable [them] to be informed of the authority’s proposals”, and that, as Mr Underwood correctly points out, can in principle be achieved by methods other than the direct delivery of material to each individual contemplated by the claimants (see paragraph [9] above).

[31]Mr Underwood submits that the following propositions as to the meaning and operation of section 105(1) can be derived from the decision of the Court of Appeal in R v Brent London Borough Council ex p Morris

(1997) 30 HLR 324

: i) arrangements which permit tenants to inform themselves of local authority’s proposal will satisfy section 105(1)(a); ii) the court can interfere only if it is satisfied that no reasonable council could deem the arrangements in fact adopted to be appropriate. I agree that ex p Morris is indeed authority for both these propositions.

[32]The leading judgment was given by Thorpe LJ who, having emphasised what he called “the liberal language” of section 105(1), and described the arrangements that had been made by the local authority, continued at p 326:

“Mr Howell submitted to the judge that these arrangements were inadequate and that tenants could not simply be left to look at public notice boards. The judge described the submission as artificial. He said that tenants do not live in isolation but within a community in which information spreads by conversation and neighbourly exchange, particularly where shared interests are at stake. He defined the duty of the local authority and the function of the court in his judgment in these terms: “The duty on the local authority under section 105 is not to provide arrangements that are ideal or the best that can be devised; it is to provide arrangements which, in its judgment, are appropriate to enable the exchange of information and views with its secure tenants on the matters specified to take place. It is not for the Court to decide what arrangements it would have put in place had it been the local authority. The court’s function is to review the arrangements which the local authority considered appropriate. That means that the court can only interfere if it is satisfied that no local authority could reasonably have thought that the arrangements in question would in the locality in question enable secure tenants to be informed and to make known their views about the matters covered by [Section 105].”

He concluded:

“ ..... I am quite unable to say that no local authority could reasonably have thought the arrangements in question would in the locality in question enable secure tenants to be informed and to make known their views about the matters covered by the section.”

In this court Mr Howells’ argument concentrates on the arrangements to enable tenants to be informed. Whilst he acknowledges the contrast between this obligation and the stricter obligation to inform each tenant by letter contained in other sections of this Act, he still says that the arrangements must be such as to enable each tenant to receive the relevant information and not merely such as to enable the tenant to inform himself. The tenants’ role is that of passive recipient of information and not active enquirer after information. That seems to me close to a submission that the duty on the council is to inform each tenant. The Section does not go nearly that far. It only requires arrangements to enable the tenant to be informed and, in my judgment, that includes arrangements that enable the tenant to inform himself … Finally, Mr Howell says that there is no evidence of a specific determination by the council that the arrangements are appropriate. That submission seems to me unduly legalistic. The council implicitly determine whatever arrangements they in fact put in place. The sole question for this court is whether the arrangements are such that no reasonable council could deem them appropriate. I share the judge’s conclusion and his reasoning.” “The duty on the local authority under section 105 is not to provide arrangements that are ideal or the best that can be devised; it is to provide arrangements which, in its judgment, are appropriate to enable the exchange of information and views with its secure tenants on the matters specified to take place. It is not for the Court to decide what arrangements it would have put in place had it been the local authority. The court’s function is to review the arrangements which the local authority considered appropriate. That means that the court can only interfere if it is satisfied that no local authority could reasonably have thought that the arrangements in question would in the locality in question enable secure tenants to be informed and to make known their views about the matters covered by [Section 105].” “ ..... I am quite unable to say that no local authority could reasonably have thought the arrangements in question would in the locality in question enable secure tenants to be informed and to make known their views about the matters covered by the section.”

[33]In sum, Mr Underwood submits that the starting point of the analysis must be section 105 of the 1985 Act; that it is plain from section 105 that there is no obligation on a local authority to canvass the disadvantages of any course of action that it proposes to take regarding housing management; and that there is nothing in either the ODPM Guidance or the Code (or for that matter in the aim which Camden set itself for the consultation exercise here under challenge) requiring it to advance to its tenants and leaseholders any matter which might lead them to vote against its proposal for an ALMO. I agree.

[34]More particularly, and basing himself for this purpose on ex p Morris, Mr Underwood submits that it is not for the court to assess for itself whether the material put out by Camden is (to use Ms Markus’s word) fair or whether it complies with the requirements of section 105 or the Code or the ODPM Guidance. That is a matter for Camden. The only question for the court is whether a reasonable authority could have concluded that the consultation exercise mounted by Camden would enable its tenants and leaseholders to be reasonably informed as to the nature of, the reasons for and the implications of, its ALMO proposals. In other words, says Mr Underwood, the court’s task is essentially limited to Wednesbury type review. Again, I agree.

The consultation process – the facts

[35]Much time was taken up in arguing, on the one side, that, as Mr Underwood put it, there are no disadvantages to the proposed ALMO of which Camden needed to inform its tenants and leaseholders and, on the other side, that, as Ms Markus put it, there are credible arguments against the ALMO. Perhaps not surprisingly in what has obviously become a highly charged political debate a substantial element of hyperbole has crept into the opposing arguments. Thus the claimants assert (I quote Ms Markus’s skeleton argument) that “the only reasonable choice for tenants is to reject the proposal” for an ALMO – though making it clear that this is not the basis of their judicial review application – whilst Camden went so far in its detailed grounds of opposition to the claim as to assert that “there simply are no credible arguments against an ALMO in the circumstances in which Camden finds itself.”

[36]I absolutely decline to become involved in this debate. It is unnecessary for me to express any views on these matters in order to decide the very narrow legal issues which are before me for decision and, for reasons which I have already spelt out, it is wholly undesirable that I should do so. It is highly undesirable that a judge should be put into the position of having to decide what arguments are, and what arguments are not, credible in the context of a debate such as this. A judge, although it may be that on occasions he can legitimately exercise the functions of an aedile, is no censor. There is moreover something profoundly undemocratic in the idea that a judge should determine what arguments can or cannot credibly be put before the electorate. Surely it is for the electorate to decide for itself what arguments are and what arguments are not credible. A mature electorate can decide for itself whether what is being peddled is credible sense or incredible nonsense. Nor do I accept the premise which seemingly underlies this part of the dispute: namely that the only views which are relevant in what is in many ways a highly charged and politicised debate on social policy are those which some Platonic guardian can be persuaded are “credible”. Political debate is often as much a matter of the heart as of the mind, which is yet another reason why the judges should stay out of it.

[37]I am prepared to assume for the purpose of these proceedings – though I emphasise without making any finding to this effect – that there are indeed, as Ms Markus submits, in respect of each of what she says are the major issues at the heart of the ALMO debate, credible arguments against an ALMO. Putting the same point rather differently, I am not prepared to accept as a justification for Camden simply ignoring them (if and insofar as it did) its belief that the arguments against an ALMO are, as has been suggested on its behalf, either not credible, “based more on speculation and fear rather than fact” or “effectively political”. That may or may not be so – I express no views on the point – but even if Camden’s factual premise is correct it is not necessarily determinative of the matter.

[38]Both Ms Markus and Mr Underwood took me through substantial parts of the very large mass of materials that this debate has generated. It was entirely appropriate that they should do so, but it is quite impracticable for me even to attempt to summarise or analyse this material. In any event, and consistently with ex p Morris, the materials put out by Camden have to be evaluated as a whole. More importantly, and again consistently with ex p Morris, the materials put out by Camden cannot be considered in isolation. They have, as Mr Underwood submitted, to be evaluated taking into account the entirety of the process and the whole of what I do not think he exaggerated in describing as a debate which has been exceptionally wide-ranging both in the scope of the issues argued and in the coverage achieved.

[39]It would, I think, be idle to dispute that the materials Camden has put out have been uniformly positive about the alleged merits of an ALMO. As Ms Markus says, the Camden materials contain only praise for the ALMO. I do not doubt that, in part at least, they have also been, and intentionally so, persuasive rather than merely informative. Thus although a repetitive theme has been the prominent use of the word “choice” or of the phrase “the choice is yours” this is seemingly always accompanied by a prominent “√”. Likewise, Camden’s materials include sections headed “the facts – an ALMO for Camden means” which then list seven so-called “facts” each of which is preceded by a prominent “√”. Indeed, in at least one Camden publication these seven matters, each preceded by a prominent “√”, are described as “7 reasons to vote ‘YES’ to the ALMO”. The materials contain interviews with Camden tenants headed “Why we’re voting ‘Yes’”, though none, as Ms Markus points out, with tenants who are voting ‘No’. Again, Camden’s materials contain statements such as “Camden Council believes that the ALMO is the best choice. We believe it offers you a better future.” and “If the vote is ‘No’ and the ALMO doesn’t happen, we won’t get the extra public money to do up your kitchens and bathrooms. If the vote is ‘Yes’ and the ALMO does happen, tenants will get the new kitchens and bathrooms, and everyone will get all the other improvements as well.”

[40]There have also been a few occasions when Camden’s materials have not been entirely accurate. Thus some of the material has asserted that “tenants will get the new kitchens and bathrooms” notwithstanding that the true position is, as explained in other Camden materials, that “nearly 60% of tenants will get a new kitchen and nearly 50% will get a new bathroom”. That said, the impression I have is that overwhelmingly, so far as concerns matters of fact, Camden’s materials have been entirely accurate.

[41]Recognising all this, I am nonetheless wholly unpersuaded that there is any substance in Ms Markus’s complaints. Read as a whole Camden’s materials seem to me to meet the requirements of section 105 of the 1985 Act without falling foul of anything in the Code. Camden’s materials do inform its tenants and leaseholders of what is proposed by Camden; they do inform them of Camden’s reasons for setting up an ALMO; they do set out the implications as Camden sees them; and in my judgment they do so in a way which enables the electorate to make an intelligent response. Camden’s materials are not mere sloganising propaganda. This is not a publicity campaign whose primary purpose is to persuade the electorate to accept Camden’s view to the exclusion of contrary opinions. Insofar as the campaign is designed to be persuasive it is, in my judgment, lawfully so. Mr Underwood, of course, does not have to go that far, for ultimately the issue here is one of Wednesbury rationality. Camden, in my judgment, was quite plainly acting reasonably in concluding that the materials it put out as part of its consultation exercise were more than adequate to meet its legal obligations.

[42]Ms Markus complains that the Camden materials fail to ensure that the arguments on both sides of the debate are equally available to voters. There are, as it seems to me, three answers to that: i) In the first place there was, as I have already sought to explain, no legal obligation on Camden to do so. ii) Secondly, amongst the materials that Camden has in fact sent out to its tenants and leaseholders is a document headed “The Camden Defend Council Housing Campaign has vigorously publicised its “eight reasons to reject an ALMO”. We have set these out below and put the Council’s position on each one.” Far from that document being, as Ms Markus suggested at one point, a “parody” of Camden DCH’s case, the “eight reasons” have been accurately quoted from Camden DCH’s own website. Camden’s response is to treat each of the eight points seriously and to supply a reasoned response. Its tone is not one of dismissive ridicule or contempt. The claimants and Camden DCH may not agree with – they may not like – Camden’s response, but that is neither here nor there. The fact is that Camden has chosen to engage with and to address the case against an ALMO, and to do so explicitly and accurately by reference to the way in which that case has been publicised by Camden DCH. iii) Thirdly, Camden’s materials have in any event to be evaluated in the context of the wider debate which has been taking place in relation to Camden’s proposals, a debate which, as I have said, has been exceptionally wide-ranging both in the scope of the issues argued and in the coverage achieved. If and insofar as Camden was under any obligation to give “air time” to the views of Camden DCH or other objectors, then Camden’s materials have, as Mr Underwood put it, to be evaluated in the light of all the materials that were ‘out there’. Camden, he says, was entitled to conclude that the totality of the materials and information available to its tenants and leaseholders, including but not limited to the materials put out by Camden itself, was more than adequate to ensure that the electorate was fairly and properly informed about both sides of the debate. I agree.

[43]I have been taken in detail through much of the material that bears on this point. It suffices for present purposes to say that, whilst Camden sought to disseminate its proposals by a number of means – consultation meetings with various representative bodies, a series of public meetings, community group meetings, estate and local centre drop-in information days, as well as various mail shots to every tenant and leaseholder – Camden DCH mounted an active campaign utilising mail shots, posters, newsletters, letters to local newspapers (many of which were published), full page adverts, speaking at the public debates and representatives’ meetings and touring the borough with a loudspeaker. Moreover, one of its campaigners stood for election to the shadow ALMO board and a copy of his election address was sent to every voter. Camden’s case is that an extremely vigorous debate about Camden’s proposals then ensued in which all those arguments which the claimants are now asserting should have been canvassed by Camden were in fact widely and extensively deployed, if not by Camden then by Camden DCH (that sufficing to meet the ex p Morris test). I agree. One needs to look no further than the extensive file of press-cuttings from the Camden New Journal I was shown, including in particular cuttings from its ‘Letters to the Editor’ page, to see the extent to which (and I quote the headlines on the Letters pages in the issues of the Camden New Journal dated 2, 16 and 30 October 2003) “The Almo debate continues to generate heated opinions among tenants”, “Future of council housing [is] under the microscope” and “Almo debate continues to rage as ballot date draws near”.

[44]Ms Markus seeks to answer this part of Camden’s case by pointing to a number of matters which she relies upon as showing that the public debate was less balanced and pervasive than asserted by Camden: the imbalance between Camden’s resources and the resources available to Camden DCH, so that, for instance, whereas Camden DCH’s adverts have been in black and white Camden has been able to afford full colour adverts; the fact that since 45% of Camden’s residents do not read the Camden New Journal media coverage of Camden DCH’s case is likely to be less effective than Camden’s sending of its own materials to all its tenants and leaseholders (she also points in this connection to a survey which shows that the largest single sources of information for Camden’s tenants and leaseholders about Camden’s plans for an ALMO have been Camden’s own materials); the fact that many of the comparatively few meetings have been poorly attended; and the fact that Camden DCH speakers have not been permitted to speak on the platform alongside a Camden speaker (maybe: but there has been active participation from the floor).

[45]The question at the end of the day is not whether the arguments were canvassed in the ideal way but whether Camden could reasonably have regarded the process, including but not of course limited to the public debate, as having been sufficient. Mr Underwood submits that there can be only one answer to that question. I agree. Even making every allowance for all the factors to which Ms Markus directed my attention (including those to which I have not made express reference) it seems to me quite manifest that by the end of the process – in which I include not merely Camden’s dissemination of its own materials and the dissemination of materials by Camden DCH and those supporting its views but also, and most importantly, what I am satisfied was the vigorous, wide ranging and indeed pervasive public debate in the media and elsewhere that took place, and, I might add, took place in large measure because of and in reaction to Camden DCH’s success in getting the whole ALMO issue into the public eye as a matter of importance and controversy – Camden was reasonably entitled to take the view that the electorate was more than adequately informed about both sides of the debate. Indeed, if it were necessary for me to go this far, I would myself have come to precisely that conclusion.

The consultation process – conclusion

[46]For all these reasons I conclude that the claimants’ challenge fails. It is founded on a legal analysis which impermissibly seeks to impose on Camden legal duties to which, in my judgment, it is not subject. It fails moreover and in any event on the facts.

[47]I should add that Mr Underwood also sought to persuade me, somewhat faintly, that the claimants had an alternative remedy available to them and that accordingly I should not grant them any relief even if they succeeded in making good any part of their case. In the event the point does not arise for decision, but I ought to make clear that I would not have been prepared to dismiss the claim on this ground if it had otherwise had merit.

The ballot question

[48]Ms Markus submits that the ballot question is unfair, biased and tendentious, insofar as, she says, it describes the ALMO in a positive light, is likely to be read as implying that a ‘No’ vote is a ‘No’ to improvements, and is thus likely to engender – indeed encourage – support for the ALMO. She submits that Camden should not have attempted to influence the outcome of the vote by the form of the question. She points to the Guidelines published by the Electoral Commission under the Political Parties, Elections and Referendums Act 2000 – which she accepts do not in fact apply to Camden’s ballot – and in particular to guidelines 2 (“Words and phrases used in the question should not have positive or negative connotations”), 3 (“Words and phrases used in the question should not be intentionally leading”), 4 (“Words and phrases used in the question should not be loaded”) and 8 (“The question should not provide more information than is necessary to answer the question meaningfully”).

[49]Mr Underwood, for his part, says that the ballot question was fair and lawful. He points out that it was in fact shown in draft to both the ODPM and the Electoral Reform Society (“ERS”) and that both the ODPM and the ERS were content with the formulation chosen. He also points out the ballot form was sent by Camden to its tenants and leaseholders accompanied by the document (see paragraph [42] above) which set out Camden DCH’s case. He draws attention to the Electoral Commission’s comments under guideline 9 (“The question should be sensitive to the level of public awareness … If there is limited public awareness of the subject, it may be appropriate to include more detail about the choices”). He says that each of the two impugned phrases – “Council owned” and “and improve” – is both accurate and apt.

[50]The point is a short one, not capable of much elaboration. The views of the ODPM and ERS cannot be determinative. Nor, I am content to assume, contrary to Mr Underwood’s submission, is Camden’s view determinative, though it seems to me that Camden was fully entitled to conclude, as a reasonable local authority, that the question was in all the circumstances entirely fair and appropriate. Let it be assumed, as Ms Markus would have it, that the issue is one to be determined by the court. I simply cannot accept her criticisms of the question. The challenged words were entirely accurate. They were not tendentious. It was entirely appropriate to qualify the rather technical words “Arms Length Management Organisation” – words which if unexplained might have had the potential for misunderstanding by those not familiar with what an ALMO is – with the entirely accurate, and as it seems to me appropriate and helpful, label “Council owned”. It was also, in my judgment, entirely appropriate and helpful to remind or inform voters that the purpose of an ALMO is not merely to manage but also “to improve” the local authority’s housing.

[51]In my judgment the form of the ballot question was lawful.

Conclusion

[52]It follows that this application for judicial review fails and must therefore be dismissed.