Breckland District Council & Ors v The Boundary Committee & Anor [2008] EWHC 2929 (Admin)

[2008] EWHC 2929 (Admin)Case No CO/8386/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/11/2008
Before
MR JUSTICE CRANSTON
Between
(1) Breckland District CouncilClaimant(2) South Norfolk District Council, (3) Borough Council of King's Lynn and West NorfolkClaimantThe Boundary CommitteeDefendantSecretary of State for Communities and Local GovernmentInterested Party
Timothy Straker QC and Andrew Sharland (instructed by Knights Solicitors) for ClaimantMichael Beloff QC and Gerard Clarke (instructed by The Electoral Commission) for DefendantJames Eadie QC and Catherine Callaghan (instructed by Treasury Solicitors) for Interested PartyHearing Hearing dates: 13, 14 November 2008
JudgmentMr Justice Cranston :INTRODUCTORY
[1]English local government in the form of the shire can be traced back to the Doomsday Book although it was in the nineteenth century that it took its current shape of an elected body with regulatory and service functions. In the present day the activities of local authorities touch the lives of all from dealing with abandoned vehicles, through the provision of leisure centres and schools, to the sponsorship of zoos. Around a local authority there develop institutional and social patterns. These are as simple, yet as important, as an annual Remembrance Day ceremony. Local government serves as a seedbed for national leadership with many Members of Parliament having a background on their local council and local government chief officers moving into senior positions in the civil service.[2]Patterns of local government have varied over time. Outside London the Local Government Act 1888 constituted counties, boroughs and urban and rural sanitary districts (renamed urban and rural districts in 1894). The Local Government Act 1933 divided English local government outside London into administrative counties and county boroughs. Administrative counties were either non-county boroughs, urban districts or rural districts. In 1969 the Royal Commission on Local Government in England (Cmnd. 4040, the Redcliffe-Maud Report) recommended replacing this structure with unitary authorities. The dissenting report of one of its members, Derek Senior, urged retention of a two-tier structure, although much altered. The Local Government Act 1971 confirmed the two-tier pattern although it added to the number of metropolitan counties. Since then the two-tier structure has suffered further erosion. Unitary authorities were created in 1996 in four counties and, in 1997, before the change of government, in another ten. Since that time the trend has continued. In 2006 the local government White Paper, Strong and Prosperous Communities (Cm. 6939), set out the present government’s intention to invite local authorities in shire areas to make proposals to replace two-tier structures of district and county councils with single tier unitary authorities (see esp. paras. 3.54-3.55, 3.59). This policy was based on the concern that two-tier local government created risks of confusion, duplication and inefficiency between tiers, and that moving to a single tier of local government could be the best way of overcoming these. The legislation required to implement this policy is Part 1 of the Local Government and Public Involvement in Health Act (“the 2007 Act”). There are critics of this approach, across the political spectrum. Illustrative is a passage quoted in argument by the claimants from G Mulgan and F Bury “Local Government and the case for double devolution” in Double Devolution (The Smith Institute, 2006):
“One of the main rationales for centralisation was the claim that there are economies of scale in service delivery. Surprisingly, however, there is no evidence for economies of scale in the main services that have been centralised, and the only detailed analyses that have been done show very few, if any, economies of scale above the very smallest district councils.”
[3]All this is background to the present claim. The claimants are local authorities in Norfolk, the Breckland District Council (“Breckland”), South Norfolk District Council (“South Norfolk”) and the Borough Council of King’s Lynn & West Norfolk (“King’s Lynn & West Norfolk”). These three councils cover a large area of the county of Norfolk. Their application for judicial review relates to the proposed reorganisation of local government in the county. A draft proposal of the Boundary Committee, if finally adopted, and if accepted by the Secretary of State, would lead to their abolition, along with the abolition of other district councils in Norfolk, the Norfolk County Council and a district council in Suffolk. Given that local councils are representative bodies, their important role in service provision and regulation, and the patterns of institutional and social life which grow up around them, I accept the claimants’ submission that the proposal, if implemented, would have a real impact on the lives of people living in Norfolk. As such I accept that the claim is a matter of considerable public importance. As I made clear at the hearing I also regard this action as a proper one to be brought. It should not be forgotten that because they are elected, councillors have a legitimacy denied to the rest of us directly involved in this litigation with the exception, of course, of the interested party, the Secretary of State.[4]The defendant is the Boundary Committee for England. It succeeds the Local Government Commission for England, which was responsible for conducting reviews of the structure of local government in all English local authorities (excluding Greater London) and the six metropolitan county areas. As a result of that Commission’s work 46 new unitary authorities were created. The Boundary Committee was established in April 2002 as a statutory committee of the Electoral Commission, established under the Political Parties, Elections and Referendums Act 2000. The Commission is not part of the Crown. It is accountable, not to any government department or Minister, but to a cross party Committee of the House of Commons, chaired by the Speaker, and so ultimately to Parliament. It must thus be accorded a very great respect, not least because of its independence and political neutrality. The Commission is responsible for the appointment of the members of the Committee, and for the provision of its finances. The Secretary of State submitted that the Boundary Committee is an expert and experienced body, a submission I accept. After its creation, the Boundary Committee had statutory functions conferred on it by the Local Government Act 1992, as amended by the Local Government Commission for England (Transfer of Functions) Order 2001, SI 2001 No 3962. Under section 13 of the 1992 Act, the Boundary Committee had the power, in response to a request from the Secretary of State to the Commission, to conduct a review of a specified area and to make a recommendation as to whether a structural change ought to be made. It is now Chapter 1 of the 2007 Act which makes provision for the Boundary Committee to review one or more local government areas and to make recommendations regarding changes. To its provisions we shall return. THE NORFOLK DRAFT PROPOSALS Genesis of the Norfolk draft proposals[5]The government published its local government White Paper, Strong and Prosperous Communities, in October 2006. Simultaneously, the Secretary of State issued an invitation to local authorities to submit proposals for unitary local government. This set out the terms on which proposals were invited, guidance to which councils should have regard in submitting a proposal, and a three-stage process for the assessment of proposals. The invitation required a proposal to be reasonably likely to deliver the outcomes according to five criteria: firstly, that the change to future single-tier structures would be(i) affordable, and(ii) supported by a broad cross section of partners and stakeholders and, secondly, that the single-tier structures would(iii) provide strategic leadership,(iv) deliver opportunities for neighbourhood empowerment, and(v) deliver value for money. Local authorities were required to submit their proposals by 25 January 2007. Responding to the invitation some 25 local authorities submitted proposals to the Secretary of State. One was from Norwich City Council (“Norwich”), which proposed a unitary authority covering its existing area, but which as a secondary proposal suggested a “greater Norwich”. Stage 1 of the process, the initial assessment, concluded in March 2007. The government announced that 16 of the proposals, including the Norwich proposal, would proceed to stakeholder consultation. Stage 2, the stakeholder consultation, ended three months later, in June 2007. Stage 3, assessment of the proposals following consultation, concluded a month later. There was a written Parliamentary statement of what the Secretary of State was minded to implement if the legislation anticipated by the White Paper was enacted.[6]Regarding Norwich, the Secretary of State announced that she was not minded to permit its proposal to proceed because she did not consider there was a reasonable likelihood that, if implemented, it would achieve the outcomes specified by all five criteria. However, she said that she intended to refer the Norwich proposal to the Boundary Committee and to request it to examine local government structures in Norfolk with a view to the Committee making an alternative proposal, if they saw fit, not based on the city’s current boundaries. By this time the Bill contemplated by the White Paper had been introduced into Parliament, in December 2006. It received Royal Assent at the end of October and on 1 November 2007 Part 1 came into force.[7]In early December 2007, the Secretary of State made a further written Parliamentary statement. She confirmed that she was not minded to implement the Norwich proposal but had decided to request the Boundary Committee to advise on the proposal, and on whether there could be alternative unitary solutions covering the wider Norfolk area. Meanwhile, but prior to receipt of that request, the Boundary Committee held a series of meetings with local authorities in Norfolk intended to provide an early indication of its likely approach and the process it would adopt. One was in October 2007; there are slides from a power-point presentation at it. This was in light of the Secretary of State’s indication but prior to receipt of a request. In meetings in early November 2007 the Boundary Committee encouraged local authorities to formulate outline business cases for unitary proposals. Boundary Committee requested to advise[8]On 6 February 2008 the Secretary of State sent a “Request to the Boundary Committee to Advise” (“the Request”) pursuant to section 4(2) of the 2007 Act. The Secretary of State confirmed that in her judgment there was not a reasonable likelihood that the Norwich proposal would meet the criteria, in particular because in her view value for money in service delivery might be compromised by the city’s small population and the difficulty of managing cross-border issues. She also had concerns about risks to the projections on costs and savings and the reliability of the financial data. The request then went on to seek advice in relation to the unitary proposals:
“a. whether there could be an alternative proposal for a single tier of local government, and if so on what basis, for Norwich and the whole or part of the surrounding Norfolk county area which would in aggregate have the capacity, if it were to be implemented, to deliver the outcomes specified by the five criteria set out in Annex A to this request; and b. whether there could be an alternative proposal for a single tier of local government, and if so on what basis, for Norwich and the whole or part of the surrounding Norfolk county area, together with the whole or part of the district of Waveney [in Suffolk], which would in aggregate have the capacity, if it were to be implemented, to deliver the outcomes specified by the five criteria set out in Annex A to this request; and c. if there could be alternative proposals for a single tier of local government referred to in sub-paragraphs a and b above, which of them would better deliver the outcomes specified by those criteria; and d. if there could be an alternative proposal for a single tier of local government identified under sub-paragraph c above, or if not, if there could be an alternative proposal for a single tier of local government referred to under either sub-paragraph a or b above, would the Boundary Committee make that alternative proposal to the Secretary of State; for the avoidance of doubt the reference to the making of any such alternative proposal is a reference to the making of a proposal in accordance with the procedure set down in section 6(4) and (5) of the 2007 Act.”
[9]Annex A to the Request set out the outcomes to be achieved by unitary arrangements. Any unitary arrangements, if implemented, should be “reasonably likely to deliver the following outcomes” (the five criteria):
“I. The change to the future local government structures is to be: • affordable, i.e. that the change itself both represents value for money and can be met from councils’ existing resource envelope; • supported by a broad cross section of partners and stakeholders; and II. those future unitary local government structures are to: • provide strong, effective and accountable strategic leadership, including that strong economic leadership …, • deliver genuine opportunities for neighbourhood flexibility and empowerment …, • deliver value for money and equity on public services.”
As to affordability, Annex A described it as follows:
“The change to a unitary structure should deliver value for money and be self-financing so that: a) transitional costs overall must be more than offset over a period (“the payback period”) by savings; b) the “the payback period” must be no more than 5 years; c) in each year, capital transitional costs incurred are to be financed through revenue resources, or the normal process of prudential borrowing or the use of capital receipts; d) in each year, other (i.e. revenue) transitional costs incurred are to be financed through a combination of the following: • in year revenue savings arising as a result of restructuring; • other in year specified revenue savings that are additional to annual efficiencies (e.g. Gershon savings) which local authorities are expected to make; • drawing on available revenue resources, subject to ensuring that satisfactory amounts remain to meet unforeseen pressures or other potential calls on reserves. Use of revenue reserves should be the final option considered, both because of the need to preserve a contingency to meet future pressures and because use of reserves adversely affects the fiscal aggregates in a given year, increasing spending but not receipts and so placing further pressure in the government’s fiscal rules; e) the use of capital resources to meet revenue costs will not be permitted.”
Regarding affordability Annex A continued that costs incurred as a result of reorganisation had to be met locally without increasing council tax and that central government would accept no liability for any miscalculation, cost or unforeseen cost of restructuring. As regards the need for a broad cross section of support, the Annex said: “It is recognised that a change to a unitary structure may not carry consensus from or within all sectors. While no single council or body, or group of councils or bodies, should have a veto, the change to a unitary structure, if it were to be made, should at least have a measure of support from a range of key partners, stakeholders and service users/citizens.” • affordable, i.e. that the change itself both represents value for money and can be met from councils’ existing resource envelope; • supported by a broad cross section of partners and stakeholders; and • provide strong, effective and accountable strategic leadership, including that strong economic leadership …, • deliver genuine opportunities for neighbourhood flexibility and empowerment …, • deliver value for money and equity on public services.” • in year revenue savings arising as a result of restructuring; • other in year specified revenue savings that are additional to annual efficiencies (e.g. Gershon savings) which local authorities are expected to make; • drawing on available revenue resources, subject to ensuring that satisfactory amounts remain to meet unforeseen pressures or other potential calls on reserves. Use of revenue reserves should be the final option considered, both because of the need to preserve a contingency to meet future pressures and because use of reserves adversely affects the fiscal aggregates in a given year, increasing spending but not receipts and so placing further pressure in the government’s fiscal rules;[10]Annex B to the Request was entitled “Guidance from the Secretary of State” (“the Guidance”). It contained the guidance to which the Boundary Committee had to have regard in making any recommendation or alternative proposal pursuant to section 6(2) of the 2007 Act. Paragraph 5 of the Guidance stated that it was a matter for the Boundary Committee whether to provide advice or make an alternative proposal to the Secretary of State, and if so what that should be. It was open to the Boundary Committee, if it saw fit, to make an alternative proposal under section 5(3)(c) of the 2007 Act “which has not been sought or referred to in the Secretary of State’s request for advice”. Paragraph 6 of the Guidance stated that the first stage in the procedure for making an alternative proposal was for the Boundary Committee to formulate a draft alternative proposal. The Guidance recommended:
“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.”
[11]Paragraph 7 of the Guidance referred to the cost to be incurred in the Boundary Committee’s inquiries:
“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 proposal that it formulates.”
[12]The Guidance stated that the Committee’s formulation of a draft alternative proposal should not be limited to proposals put forward by local authorities or other interested parties, and that a draft alternative proposal may be “entirely different from anything that local authorities or other stakeholders have suggested or sought to promote”: paragraph 8. The Guidance went on to refer, in paragraph 9, to representations by interested parties:
“The procedure that the Committee is required to follow by section 6(4) and (5) of the 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 to it by 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. 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. ”
[13]Paragraph 10 of the Guidance referred to the five criteria set out in the Request:
“To provide the advice requested, and assess and make an alternative proposal sought by the Secretary of State, will involve the Committee having to reach a judgement about the capacity of particular unitary arrangements, if they were to be implemented, to deliver specific outcomes on the five criteria. It is recognised that in practice the likelihood of such outcomes being delivered, if particular unitary arrangements were to be implemented, will in part depend not only on the unitary structures themselves, but also what associated arrangements on, for example, council executives, neighbourhood and community governance, or partnerships, are adopted within those structures. Accordingly, when making judgments about a possible alternative proposal, the Committee may consider what such associated arrangements might be possible with, or facilitated by, that alternative proposal, and in the event of the proposal’s implementation, what such arrangements are likely to be adopted.”
Boundary Committee’s implementation of the request[14]Following receipt of the Request, the Boundary Committee wrote to affected local authorities in mid February 2008 to inform them that, in light of the Request, it would commence its review of local government structures in the Norfolk area. On 12 February the Boundary Committee wrote to the Minister for Local Government:
“We now intend to commence structural reviews in Devon, Norfolk and Suffolk as soon as is practicable, in advance of, but subject to confirmation by the Speaker’s Committee that sufficient resources will be provided to enable us to complete this work. We understand your view of the importance of our advice being provided by 31 December.”
[15]On 25 February 2008 the Boundary Committee held a meeting with affected local authorities in Norfolk. There were a series of slides for a power point presentation at that meeting. These recalled the request for advice and the criteria set out in the request. The Boundary Committee’s approach was said to be:
“Different to “blank slate” approach taken in previous structural reviews Unitary options for the whole of Norfolk and Suffolk Any alternative proposals will be for unitary local government.”
The slides also gave details of the timetable the Boundary Committee proposed to use during the review process. The timetable involved four stages: Stage 1 was to run from 3 March to 11 April. During that local authorities would be invited to submit concepts for new unitary authorities. As regards affordability, there had to be a reasonable expectation that this criterion could be met and that later it would be met. There would be a briefing of section 151 officers. (A “section 151 officer” occupies a statutory position under section 151 of the Local Government Act 1972 to ensure the lawfulness and financial prudence of decision making in a local authority). During Stage 2, 14 April to 4 July 2008, the Boundary Committee would consider the concepts and seek any further information from local authorities and others. In Stage 3, from 7 July to 26 September 2008, draft proposals would be published and the Boundary Committee would consult on them. Finally, at Stage 4, 29 September to 19 December 2008, the Committee would deliberate and provide advice. After the Boundary Committee provided advice there would be a further four week period in which representations could be made direct to the Secretary of State. The slides also explained that the detailed financial information relevant to an assessment of the affordability criterion would be requested from local authorities at Stage 3 of the process, after publication of draft proposals. Unitary options for the whole of Norfolk and Suffolk Any alternative proposals will be for unitary local government.”

Unitary options for the whole of Norfolk and Suffolk

[16]The Boundary Committee’s review formally commenced on 3 March 2008. The Committee wrote to all local authorities in Norfolk informing them of the review procedure and inviting them to submit broad concepts for unitary structures for the county. The Committee also formulated guidance, available on its website from March 2008, on the structural reviews it was undertaking. Among a series of “frequently asked questions” published there as “FAQs on structural reviews of Devon, Norfolk and Suffolk” was this:
“Is the status quo/existing two-tier system an option? The existing two-tier system will only remain if we are unable to identify an alternative proposal or if the Secretary of State does not choose to implement an alternative proposal.”
[17]On 8 April 2008, the Committee gave a briefing to Norfolk local authorities’ section 151 officers with regard to the proposed procedure for collection and collation of data relating to the affordability of the draft proposals during Stages 3 and 4 of the process. The Committee envisaged that this process would allow an assessment of the affordability of the proposals to be made on the basis of a given set of assumptions.[18]During April 2008, the Boundary Committee received seven main concepts, including concepts from each of the claimants, favouring different unitary patterns for Norfolk. Following that the Committee sought further information from the proponents of each concept. That was received in May. None of the concepts received from the claimants favoured one unitary authority for Norfolk; each advanced other patterns of unitary authority. The draft alternative proposal[19]In July 2008, the Boundary Committee published its report Draft proposals for unitary local government in Norfolk and Suffolk (“the Report”). There it set out its draft alternative proposal for Norfolk – a unitary authority comprising the existing county of Norfolk and the Lowestoft area of Suffolk. This constituted a rejection of the proposals made by the various local authorities and interested parties, none of which had advanced it. Nowhere in the Report are these other proposals analysed. The Report said that the Boundary Committee had not finalised its proposals and would welcome the views of interested parties. Chapter 2 of the Report set out its approach. Here the Boundary Committee recapitulated various matters set out in the Request, including the five criteria. As regards affordability the Report said:
“2.8 Given the likely number of different concepts we expected to receive, we took the view that to test the affordability of each and every one would be wasteful of resources, particularly if, in our judgment, they failed to meet the other criteria. We were also mindful of our guidance from the Secretary of State, which makes clear that in the formulation of any draft proposal we should not be limited to assessing and choosing between concepts submitted by local government. We nevertheless advised the principal authorities that, in developing their concepts, they should be reasonably satisfied that they would meet the affordability test if we were to adopt any of them as our draft proposal.”
At para 2.56 the Report returned to affordability:
“We have not sought at this stage to assess the affordability of the draft proposals. Given the number of alternative patterns of unitary local authorities that have been suggested to us since the start of our work, and the resource cost to local authorities in providing us with the necessary financial information, we took a decision early in the review process to assess affordability only once one we had reached a conclusion on our draft proposals, and once we had published them for public comment”
. With respect to the two-tier structure the Report said:
“[W]e cannot recommend the retention of a two-tier structure in preference to a unitary pattern. The status quo would only result if we were unable to identify any unitary pattern that meets the criteria in the Secretary of State’s guidance or if the Secretary of State decides not to implement our proposals (para 2.21).”
[20]The draft alternative proposal was then considered at some length in Chapter 5 of the Report. In that chapter there was also discussion of the two other patterns of unitary government which the Boundary Committee thought had some merit, involving a two unitary authority pattern (A – Norfolk and Norwich; Great Yarmouth and Lowestoft; B – Norfolk and Norwich). Again, no one had proposed these. The Boundary Committee requested representations on the draft proposals by 26 September 2008 and financial information for workbooks from the local authority section 151 officers by 5 September 2008. The claimants object[21]On 14 July 2008 the first-named claimant in this judicial review, Breckland, wrote a pre-action protocol letter to the Boundary Committee in relation to its draft alternative proposal for the Norfolk area. This letter outlined what it identified as the following defects in the consultation process: i) the Boundary Committee had failed to assess affordability; ii) the Boundary Committee had failed to provide accurate and sufficient information about the draft alternative proposal; iii) the Boundary Committee had had no regard to the status quo. Breckland’s letter also requested an extension of time for consultation. The letter was copied to the Secretary of State.[22]The Boundary Committee replied on 29 July 2008, rejecting Breckland’s allegations. In the letter the Boundary Committee accepted that it must identify the draft alternative proposal with sufficient precision to enable meaningful representations to be made by any interested party. However, it had decided that it would not be reasonable or proportionate to assess every pattern of unitary authority proposed in detail as to affordability, given the timescales under which the Committee was requested to provide the advice and the likely costs. The Boundary Committee said it was collecting detailed information relating to the affordability of the draft alternative proposal and the two other unitary patterns identified in its report. That information, in the form of workbooks, was to be made available on the Committee’s website as soon as it was collated. Interested parties would be able to comment on the financial information collated and the Boundary Committee would take any representations into account. The information would be analysed by independent financial consultants and their analysis would be available when the Committee provided its advice to the Secretary of State. The Boundary Committee had considered all information received at stages 1 and 2 of the review, together with information received from meetings. It considered that the draft alternative proposal it had published “is most likely to have the capacity to meet the five criteria”. The Boundary Committee had not considered whether its draft alternative proposal might be preferable to the current two tier local government because the Secretary of State had not asked it to advise on that issue.[23]Breckland re-iterated its view on 1 August 2008 that the consultation on the draft alternative proposal was unlawful. It requested further information. The Boundary Committee replied that the process followed was lawful and supplied various documents. Meanwhile, the Secretary of State responded to Breckland’s letter before action on 13 August to the effect that “[the Boundary Committee’s] process should enable the Boundary Committee to comply with its statutory obligations without the need for further time” and therefore she was not minded to extend time, subject to any comments to the contrary from the Boundary Committee. The approach adopted by the Boundary Committee was lawful. Any comparison between the status quo two tier local government and unitary government was likely to be most constructive if made after the draft alternative proposal had been formulated.[24]The Boundary Committee wrote to the Secretary of State on 19 August 2008 stating that in its view it should be in a position to provide its advice by 31 December. On 10 September 2008 it published a press release, Let Committee know your views on local government:
“The Boundary Committee for England has reminded people in Devon, Norfolk and Suffolk to make their views known on draft proposals for unitary local government in the county. Archie Gall, Director of the Boundary Committee, said “People across all three counties have taken a huge interest in our draft proposals, and our report has been downloaded over 10,000 times. We’ve had thousands of extremely useful responses so far but we know that there may be some people who haven’t had their say yet. Please don’t miss out on your chance to have your say and tell us why you think that. Your evidence really does help to inform our thinking as we prepare to make a recommendation to the Secretary of State that we believe will be in the best interests of the county as a whole.”
To comment on the draft proposals, fill in the online form or write to the Boundary Committee, giving reasons for your views. All responses to the current consultation are published on the Boundary Committee’s website. The formal close of the consultation is 26 September but the Committee will consider responses made after that date. The Committee will then provide its final advice to the Secretary of State for Communities and Local Government by the end of this year. Responses to the draft proposal can be made by filling in an online form or writing to …”[25]In September, Breckland, South Norfolk and King’s Lynn and West Norfolk, together with North Norfolk District Council (“North Norfolk”) and Broadland District Council (“Broadland”), submitted their response to the consultation. They rejected the draft alternative proposal. It was high risk and high cost. The consultation was based on “concepts”, on flawed data unsupported by clear analysis and with no time for consultees to consider adequately the costs of change. With so little detail to examine in the proposal, they had little time to respond constructively. In relation to affordability they said:
“In light of the complexity and importance of the proposals presented we are not prepared to make premature comments on the figures and will therefore make no comment until we have had adequate time to fully assess the assumptions which lie behind the figures and to robustly test and examine the headline figures presented to us. Our initial impression is that the scale of the savings appears to be overstated and the costs of transition are underestimated. We believe there is a serious risk that the proposals may jeopardise the financial stability of future service delivery.”
[26]Meanwhile workbooks were being prepared for the Boundary Committee’s consideration of affordability. The process began earlier in the year. The workbooks draw on published financial data to provide a set of notional base figures which are then used to measure the changes that may be brought about by the transition to a unitary structure and the cost. Section 151 officers have been heavily engaged in the task. Norfolk County Council has acted as the lead section 151 authority in preparation of the workbooks. The workbooks have undergone a number of revisions. On 3 October the section 151 officers from South Norfolk, Broadland District Council and North Norfolk District Council wrote to the Boundary Committee that they were satisfied that the workbooks submitted to the Boundary Committee contained the correct base data. However, they added:
“[T]he level of consultation in constructing the workbooks has been wholly inadequate. The process saw very little consultation with district council officers re new structures etc and any presentations received were at a late hour and very high level. No sign up to key assumptions was sought. In our opinion there are a number of flaws in the workbooks. The most fundamental is the lack of thought around the financial viability of local government in Norfolk. The workbook does not reflect future growth pressures, indeed it appears that the efficiency savings which will be required to fund these known pressures, appear to be being used to fund the LGR process itself. The model does not appear to take account of the level of use of reserves and balances or budgeted efficiency gains within the 2007/2008 base budget nor when projecting forward over the transition period is any account taken of such planned reductions of spending in 2008/2009 and 2009/2010 of the consultant authorities. So pressures such as pension funds, education, social services have no source of funding and so will have to be met by service reductions or Council Tax increases in a new unitary structure.”
[27]During the hearing I was told that the Boundary Committee’s independent financial consultants were examining the workbooks and the Committee would publish their report on the workbooks after it had considered it. I was also shown the page on the Electoral Commission’s website from the Boundary Committee, which read, as at 6 November:
“As part of our review for Norfolk, we have been asked to test our draft proposals for affordability. In order to do this, we asked the finance officers of the local authorities to provide us with certain financial information. This information was provided to us during the consultation stage.”
This page contains that financial information we have been provided with by local authorities in Norfolk, and the assumptions on which the information is based. All of this information has been provided by local authorities and has not been manipulated by the Boundary Committee. The conclusions we draw from analysing this information will feed into our final advice to the Secretary of State at the end of the year. We amended some of the workbooks on 29 October 2008 to clarify the latest position with Norfolk County Council. These new Excel workbooks reflect a correction of the allocation of additional costs between non-staff and staff costs. Also contained in these workbooks are a new appendix (Item 2 H.4) which shows the impact on the original workbooks of setting up a Combined Fire Authority (CFA) for the Unitary County with or without Lowestoft. We have also amended Item 4 in these workbooks to remove a rounding difference.” The website also said that the Committee would try to consider further representations despite their being beyond the 26 September date. We have also amended Item 4 in these workbooks to remove a rounding difference.” THE STATUTORY FRAMEWORK[28]The procedures for changing local government structures and boundaries in force immediately prior to the 2007 Act were contained in the Local Government Act 1992. Its preamble referred to making new provision “for effecting structural, boundary and electoral changes”. As amended in 2001, section 13 of the 1992 Act empowered the Secretary of State to request the Electoral Commission to recommend in respect of a specified area in England whether a structural change or boundary change should be made: s.13(1). Where the Electoral Commission received a request it could direct the Boundary Committee for England to conduct a review of the area and to recommend whether a change of the kind specified in the request should be made: s.13(2). In carrying out their functions under section 13(5) both the Electoral Commission and the Boundary Committee for England had to have regard to the need to reflect the identities and interests of local communities and to secure effective and convenient local government. The Electoral Commission could give a direction to the Boundary Committee for England about the exercise of its functions which might, in particular, require it to have regard to guidance given by the Secretary of State as to matters to be taken into account in considering structural or boundary changes.[29]The Preamble to the 2007 Act reads, in part, that it is “to make provision with respect to local government and the functions and procedures of local authorities and certain other authorities”. Part 1 of the Act sets out the provisions concerning structural change to local government in England. In Part 1 of Chapter 1, sections 1 to 7 of the Act have the sub-heading “Changes from two tiers to single tier of local government”. Section 1 provides that each of a county council and district council is a principal authority for the purposes of Chapter 1 and that there is a single tier of local government in an area if there is a county council and no district councils for that area, or if there is a district council and no county council for that area. Section 2 empowers the Secretary of State to invite a principal authority to make a proposal for a single tier of local government. (The power of the Secretary of State to direct that a proposal be made is not relevant in this case and nothing more needs to be said about it). In essence a proposal can include the whole of a district or county area, or a combination of district and county areas. Parts of an adjoining county may be included. At this point it is convenient to take in section 21, which concerns pre-commencement invitations and proposals made in response to them: its effect is to treat these as if made under the Act. Under section 3 an invitation under section 2 may specify a date by which a proposal must be made: s. 3(3). In responding to an invitation an authority must comply with any guidance from the Secretary of State: s.3(5).[30]Section 4 sets out the powers of the Secretary of State to request advice from the Boundary Committee. It applies where the Secretary of State receives a proposal in response to an invitation extended under section 2. Subsection (2) reads:
“(2) The Secretary of State may request the Boundary Committee to advise, no later than a date specified in the request, on any matter that- (a) relates to the proposal; and (b) is specified in the request.”
Under section 4 the Secretary of State may at any time substitute a later date for the date specified in a request: s.4(3). It is common ground that the Norwich proposal was a proposal within the meaning of section 4(1) and that the Request made on 6 February 2008 was in accordance with section 4(2). (a) relates to the proposal; and (b) is specified in the request.”[31]The powers of the Boundary Committee upon receipt of a request for advice from the Secretary of State are set out in section 5. It provides, in part:
“(2) The Boundary Committee may provide the advice requested. (3) Where they provide that advice, the Boundary Committee may also do any of the following that they think appropriate- (a) recommend that the Secretary of State implements the proposal without modification; (b) recommend that he does not implement it; (c) make an alternative proposal to him.”
Clearly the Boundary Committee has a discretion as to whether or not to advise. If it chooses to do so it can recommend for or against the proposal or it can devise an alternative proposal. An “alternative proposal” is defined in section 5(5) to mean a proposal that there should be a single tier of local government for a specified area that is, or includes, the whole or part of the county concerned or consists of two or more such proposals. Importantly, an alternative proposal must be a proposal for unitary local government. The Boundary Committee’s procedure in respect of its section 5 functions are contained in section 6. Section 6(1) obliges a local authority to provide it with any information it may reasonably require. (a) recommend that the Secretary of State implements the proposal without modification; (b) recommend that he does not implement it; (c) make an alternative proposal to him.”[32]As to the Boundary Committee making a recommendation or alternative proposal, section 6 obliges it to have regard to any guidance. In relation to an alternative proposal the Boundary Committee must publish it, inform interested persons and take into account their representations. “(2) In making a recommendation or alternative proposal under section 5, the Boundary Committee must have regard to any guidance from the Secretary of State about the exercise of the Boundary Committee’s functions under that section. … (4) Before making an alternative proposal under section 5(3)(c) the Boundary Committee must-(a) publish a draft of the proposal; and(b) take such steps as they consider sufficient to secure that persons who may be interested are informed of- (i) the draft proposal; and (ii) the period within which representations about it may be made to the Boundary Committee. (5) The Boundary Committee- (a) must take into account any representations made to them within that period; (b) if they make any proposal to the Secretary of State, must inform any person who made such representations- (i) of the proposal made; and (ii) that representations about the proposal may be made to the Secretary of State until the end of the relevant period. (a) publish a draft of the proposal; and (b) take such steps as they consider sufficient to secure that persons who may be interested are informed of- (i) the draft proposal; and (ii) the period within which representations about it may be made to the Boundary Committee. (a) must take into account any representations made to them within that period; (b) if they make any proposal to the Secretary of State, must inform any person who made such representations- (i) of the proposal made; and (ii) that representations about the proposal may be made to the Secretary of State until the end of the relevant period.[33]Once the Boundary Committee has reported to the Secretary of State, the latter’s powers are contained in section 7:
“(1) Where the Secretary of State has received a proposal in response to an invitation or direction under section 2, he may – (a) by order implement the proposal, with or without modification; (b) if he has received an alternative proposal from the Boundary Committee under section 5, by order implement that alternative proposal with or without modification; or (c) decide to take no action. … (3) The Secretary of State may not in any case make an order under subsection (1)(a) implementing a proposal unless he has consulted the following about the proposal – (a) every authority affected by the proposal (except the authority or authorities which made it); and (b) such other persons as he considers appropriate. … (6) In any case where he has received an alternative proposal from the Boundary Committee under section 5, the Secretary of State may request the Boundary Committee to provide him with information or advice on any matter relating to the proposal.”
Thus following the receipt of any alternative proposal from the Boundary Committee, the Secretary of State may request it to provide information or advice on any matter relating to the alternative proposal; implement the original proposal, with or without modification; implement the alternative proposal, with or without modification; or decide to take no action on the proposals before her. The Secretary of State may not make any order or decision about implementation for at least six weeks after the date by which the Boundary Committee was requested to advise: section 7(2). (a) by order implement the proposal, with or without modification; (b) if he has received an alternative proposal from the Boundary Committee under section 5, by order implement that alternative proposal with or without modification; or (c) decide to take no action. … (a) every authority affected by the proposal (except the authority or authorities which made it); and (b) such other persons as he considers appropriate. …[34]The matters to which an order of the Secretary of State can relate are set out in section 11. Illustrative is the Bedfordshire (Structure Change) Order 2008, SI 2008 No 907, which implemented without modification proposals submitted to the Secretary of State by councils in that county. (There was no request to the Boundary Committee in that case, although before making the Order the Secretary of State consulted local authorities affected by the proposal and other persons considered appropriate). In brief outline, the Order provided a framework for the establishment of new unitary authorities in Bedfordshire and for consequent elections. Implementation executives were constituted to perform transitional functions and to prepare implementation plans to that end. For the purposes of preparing the Implementation plan and performing transitional functions in the case, for example, of Bedford, the implementation executives “shall have regard to the information supplied by Bedford Borough Council to the Secretary of State in support of its proposal for single tier local government in Bedford and, in particular, to the information supplied in relation to the matters specified in paragraphs 3.6 to 3.11 (strategic leadership, neighbourhood empowerment and value for money services) of the guidance “Invitations to councils in England”, issued by the Secretary of State in October 2006.” THE CLAIMANTS’ CASE[35]In summary, the claimants’ case is that the Boundary Committee has acted unlawfully by: i) a failure to comply with its duty to consult; ii) its departure from guidance and failure to take into account a material consideration, namely, whether the draft alternative proposal met the affordability criterion; and iii) a continuing refusal to compare the merits of any proposed structure of unitary government with the merits of the current two tier scheme of local government so as to overlook a relevant consideration from its decision making process. Although these grounds overlap to an extent, it is convenient to retain these three issues for the purposes of the judgment. In doing so the separate issues of whether the claimants are acting prematurely, or defeated by delay, need also to be considered. CONSULTATION[36]The claimants contend that the Boundary Committee failed in its duty to consult. Their position is that section 6 of the Act, coupled with the Guidance, imposes a legal duty to consult the public and other interested parties. Drawing on the judgment of Lord Woolf MR in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, [108], the claimants submit that a consultation by the Boundary Committee should be undertaken when the proposal is at a formative stage; include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; provide adequate time in which to respond; and give conscientious consideration to any response to the consultation. If such a duty cannot be founded on section 6, the claimants’ alternative submission is that the Boundary Committee in this instance expressly promised that it would consult the public and interested parties and it is bound to give effect to this promise. In other words, the Boundary Committee’s actions have given rise to a procedural legitimate expectation that it would consult: see R (Greenpeace Ltd) v Secretary of State for Trade and Industry [2007] EWHC 311 [47]-[54]; R (Niazi) v Secretary of State for the Home Department [2008] EWCA Civ 755, [29]-[30]. The claimants point to a variety of representations made by the Boundary Committee that it would consult. Thus at the October 2007 presentation it promised “full public consultation”; at the February 2008 meeting one of the power point slides read “consultation on draft proposals”; the 3 March 2008 letter had a passage “consultation on process”; the letter of 19 August 2008 from the Boundary Committee argued that there were no material omissions in the “approach to consultation”; and the Boundary Committee press release in September 2008 referred to the formal close of the “consultation”. The claimant’s submissions under this head of a failure to consult is said to have been manifest in a variety of ways. In analytical terms, the two main aspects are said to be that insufficient information has been provided to consultees and that consultees have not been given adequate time in which to consider the proposals and respond.[37]As indicated the statutory procedure for consultation is set out in section 6 of the 2007 Act: the Boundary Committee must publish a draft alternative proposal (section 6(4)(a)); take steps to inform interested parties of this to enable them to make representations on it (section 6(4)(b)); and take into account any representation made during the period (section 6(5)(a)). The Boundary Committee and the Secretary of State submit that the statutory language is deliberately couched in these terms, creating an opportunity to make representations, but not giving rise to the duty of consultation recognised by public law. The Secretary of State also submits that because she is the decision-maker, not the Boundary Committee, there is no need to impose the onerous obligation of public law consultation on it. There is no unfairness if one looks at the process as a whole and considers the ability under section 6(5)(b)(ii) to make representations to the Secretary of State after the Boundary Committee has made a proposal to her: cf. Calvin v Carr [1980] AC 574; De Smith’s Judicial Review, 6th ed., 2007, 8-029.[38]In my view the Act imposes a duty on the Boundary Committee to consult. It is splitting hairs to point to the absence of the word “consult” or its derivatives and to suggest that consequently the duty to consult differs from that which ordinarily arises. Publishing a draft proposal, informing interested persons about it, receiving their representations, and then taking those representations into account – all of this is redolent of public law consultation. Of course the statutory language moulds the course of the consultation but there can be no question that the statutory language imposes a clear duty on the Boundary Committee to seek views at an early stage, to include sufficient reasons to allow an informed response, to provide adequate time for representations and to take representations into account in a conscientious manner. This is one of those matters to which the words of Lord Hailsham in London and Clydeside Estates Ltd v Aberdeen District Council [1980] 1 WLR 182, 189 are apposite:
“When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail.”
The Boundary Committee’s role as an adviser, not decision-maker, and the potential for further representations to be made to the Secretary of State, cannot subtract from the clear obligation which Parliament imposes on it, the Committee, to consult. That duty to consult is underscored by the Guidance, which speaks of ensuring “all interested parties will have the opportunity to contribute to the Committee’s formulation of any alternative proposal …” (para. 9). It is not surprising that the Boundary Committee in the various letters the claimants point to, in the October 2007 and February 2008 presentations and in its September press release, used the words “consult” and “consultation”. It properly understood its statutory duty, and it also generated a procedural legitimate expectation that it would fulfil it.[39]There is, however, the separate issue of the court’s role in reviewing the consultation exercise. That arises whatever way the claimants advance their case, either as a statutory legal duty on the Boundary Committee to consult or because what the Boundary Committee said and did in this case gave rise to a legitimate expectation that it would consult. Here the statutory language enters. Under sections 6(4)(a) and 6(5)(a) the Boundary Committee must publish a draft alternative proposal and take into account any representations made about it. The court is first judge of whether these aspects of the consultation process have been performed. However, section 6(4)(b) confers a discretion on the Boundary Committee both as to the steps it takes to inform interested persons of a draft alternative proposal and as to the period within which those persons must respond. Thus the court can only review those aspects of a Boundary Committee consultation exercise on conventional public law grounds. Given the issues at stake, however – the future of representative bodies and of the institutional and social patterns associated with them – it seems to me that the court is entitled to perform its review function in this respect with what can be characterised as enhanced scrutiny. Because of this the boundary between usual back-stop review and being first judge of these aspects of the consultation exercise becomes blurred.[40]Thus the issue becomes whether, within these parameters, the Boundary Committee’s consultation has met the necessary standards: has it provided sufficient information on its draft proposal, in a timely manner, to render meaningful the process of inviting representations, allowing sufficient time for representations to be made? The further aspect of consultation, conscientious consideration of the representations made, has not, as yet, finally crystallised. With these principles as background, consultation is more conveniently considered in the context of the particular issues of affordability and two-tier structure, raised in the claimants’ case. AFFORDABILITY[41]By affordability is meant, as the Request in general terms put it, that a change to future local government structures must in itself both represent value for money and be met from the existing resource envelope of councils. With respect to affordability, the claimants’ challenge is threefold. Firstly, the claimants submit that the Boundary Committee has failed to have regard to the Guidance in its consideration of affordability. Secondly, they allege, the Boundary Committee has failed to bring affordability into account despite it being a relevant consideration. Finally, it is said, the Boundary Committee’s consultation is flawed because consultees have not been given either sufficient information or time to enable them properly to understand affordability and intelligently to consider and respond to it: e.g. Bushell v Secretary of State for the Environment [1981] AC 75, 96D per Lord Diplock. The Guidance[42]Under this head the claimants first point to paragraph 10 of the Guidance, that in advising and making an alternative proposal the Boundary Committee must reach a judgment “about the capacity of particular unitary arrangements, if they were to be implemented, to deliver specific outcomes on the five criteria”. One of five criteria is affordability. The claimants submit that when the Boundary Committee invited local authorities within Norfolk to propose concepts for unitary patterns of local government it did not ask them to consider whether their concepts met the criterion of affordability. Moreover, in adopting its draft alternative proposal as published in the July Report it rejected possible unitary structures suggested by the various local authorities, without considering the issue of affordability. In the claimants’ submission this approach is unlawful. Albeit that the Guidance is different from a statutory provision, at no point has the Boundary Committee indicated that it considered the Guidance and decided to depart from it. The failure to consider affordability before discarding the vast majority of possible unitary structures is so fundamental as to undermine the Boundary Committee’s advisory role. Until the Boundary Committee has assessed whether the local authorities’ proposals or some other different proposal is likely to meet the affordability criterion, it is not lawfully able to formulate a draft alternative proposal. The claimants’ challenge on this ground is not premature, it is said, because the Boundary Committee have already unlawfully discarded the vast majority of possible unitary structures.[43]An assessment of the claimants’ contentions regarding affordability and Guidance must begin with the legislation. The combined effect of section 5(3) and section 6(2) of the 2007 Act is that, in making a recommendation relating to implementation, for or against, or advancing an alternative proposal, the Boundary Committee “must have regard to any guidance issued by the Secretary of State about the exercise of the Committee’s functions under section 5”. “Having regard to” does not mean slavishly following but taking the Guidance into consideration: City of Edinburgh Council v Secretary of State for Scotland [1997] 1 WLR 1447, 1457 G-H. Guidance must be interpreted as a reasonable and literate person would understand it, taking into account that citizens’ rights may be affected: R (Raissi) v Secretary of State [2008] EWCA Civ 72; [2008] 3 WLR 375, [107]-[114].[44]In this case the Guidance provides that the Boundary Committee should reach a judgment about the capacity of particular unitary arrangements to deliver the specific outcomes of the five criteria in providing advice and making an alternative proposal. The language “judgment about the capacity” gives a flavour of the exercise which the Boundary Committee is to perform, an assessment of whether a particular framework of unitary government matches the five criteria. Crucially, the Guidance does not specify at what stage of the process this is to be done, except that it must be done “[t]o provide the advice requested, and assess and make an alternative proposal sought by the Secretary of State …” The rationale of not being specific about timing seems evident, that the Boundary Committee should have discretion as to the phasing of the different aspects of its inquiries. In the case of the present inquiry, the point at which advice is given has yet to be reached. That, under the Request, is 31 December. In July when the draft alternative proposal was published, and even at the time of the hearing, the Guidance did not oblige the Boundary Committee to have reached a judgment on affordability. In practice, if the Boundary Committee is to do so within the timetable, work on the issue needs to be well under way. From what has been set out above it is obvious that it is. At its highest the key feature of paragraph 10 is that as long as a judgment on affordability is reached so the advice can be given, the Guidance will have been satisfied.[45]The claimants also refer to use of the plural in the phrase “unitary arrangements” in paragraph 10 of the Guidance to suggest that that requires the Boundary Committee to test various unitary structures against the five criteria, and not merely the one draft alternative proposal. That clearly has not been done. In my view, however, “unitary arrangements” could be taken by the reasonable and literate person to mean the arrangements as to the local government boundaries and structures in any alternative proposal. That has been done. In my view there is no breach by the Boundary Committee of the Guidance in this regard.[46]Paragraphs 6 and 7 of the Guidance both recommend that, in formulating a draft alternative proposal, the Boundary Committee engage in dialogue with, and request information from, potentially affected local authorities about possible unitary solutions. The claimants submit that the Guidance has been ignored in relation to this. However, paragraph 7 makes clear that this process “should not involve the authority having to incur significant expenditure” and that the dialogue and information seeking should be proportionate to the Committee’s needs “as it considers appropriate”. As a matter of law it is impossible for me to fault the decision which the Boundary Committee made not to ask local authorities to determine whether their own concepts for unitary government met the affordability criterion. It was entitled to consider that such an exercise would place a disproportionate burden on them. Affordability as a relevant consideration[47]The second string to the claimants’ bow regarding affordability is that the Boundary Committee has failed properly to take it into account as a relevant consideration. It is a crucial, indeed fundamental, factor and in ignoring it, notably in the July Report, the Boundary Committee has failed in one of their public law duties.[48]It is common ground that the Committee must consider affordability before it decides whether to give advice to the Secretary of State and, if it does decide to give advice, before formulating that advice. That affordability is a relevant consideration should not be surprising. Affordability had its origins in the 2006 White Paper and runs as a thread through how unitary proposals are now to be considered and the various Boundary Committee documents. Even though the Guidance should not be regarded as a straightjacket affordability is one of the five criteria against which the Boundary Committee is requested to assess its advice and measure any alternative proposal. Of course what weight the Boundary Committee gives to affordability is, under established principles, a matter for it: Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759, 780 E-F.[49]In my view, the answer to the claimant’s challenge is that the Boundary Committee has not discarded affordability. It has treated affordability as a relevant consideration. Affordability was certainly not in the July Report but an explanation for that was given there. Importantly the Boundary Committee has been collecting information, notably through the workbooks, so that affordability can be considered prior to the decision on what advice, if any, to give to the Secretary of State. Although there is the issue of timing, referred to shortly, there is nothing in the claimant’s notion that affordability has been left out of the equation. Consultation on affordability[50]The gravamen of the claimants’ case regarding consultation on affordability is that there were no details in the July Report about it. Thus it fell short of the requirement of sufficient information. The Boundary Committee was supposed to be consulting on a draft alternative proposal which, in its view, would be likely to deliver best the outcomes specified in the five criteria set out in Annex A to the Request, of which affordability was one. The claimants, like other consultees, were unable to comment on the Boundary Committee’s approach to this criterion, for example, on the methodology so as to provide assistance on the assumptions in the figures. The supply of various workbooks post-Report has not, in the claimants’ submission, filled this gap. The workbooks have raised more questions than they answered. In any event the claimants were not able to begin reviewing the information supplied in the workbooks until 15 October 2008, nearly three weeks after the consultation period closed. The assessment of the Boundary Committee’s financial consultants will not be made available until it provides its advice to the Secretary of State in late December 2008. The claimants will therefore have no opportunity to help in this analysis. Thus the Boundary Committee’s approach excludes consultation on the central issue of whether the draft alternative proposal meets the affordability criterion.[51]Inadequacy in the consultation is said also to result because consultees have not been given adequate time in which to consider the proposals and to respond. In relation to the ability of the draft alternative proposal to meet the affordability criterion, it is to no avail the Boundary Committee stating that the claimants will have the opportunity to make representations when the various local authorities have supplied the financial information, since complete information is still not available. The Boundary Committee refused to ask the Secretary of State for an extension of time to provide its advice and the Boundary Committee refused to extend the consultation period. In the claimants’ submission the offer to consider representations after the end of the consultation period has not assisted because consultation must be when the proposals are at a formative stage. It is also no answer to say that the claimants will have a further opportunity to comment on the alternative proposal pursuant to section 7 of the 2007 Act. i.e. to the Secretary of State. By that stage the alternative proposal will no longer be at a formative stage but will be close to implementation. The Boundary Committee will have been satisfied that the draft alternative proposal meets all five of the criteria required and all other options will have been discarded.[52]In my view whether the Boundary Committee has fallen short in its duty to consult on affordability can only be determined by considering the history of the matter. First, there was the early stage, when the Boundary Committee decided that it could not take a meaningful view on the issue since it had necessarily to rely upon the collection of financial data from local authorities, and needed also to act within a timetable set by the Secretary of State’s request and her guidance not to place undue burdens on local authority. The next stage was the July Report, which set out the Boundary Committee’s draft alternative proposal. Affordability information was not available for the Report. In their response to the Report the claimants – together with Broadland and King’s Lynn and West Norfolk – have said they were therefore unable to address the affordability of the draft alternative proposal. By contrast others seem to have come to conclusions about affordability. Thus on 10 September 2008 Norfolk County Council wrote to its members suggesting that, with some qualifications, the unitary authority contemplated by the draft alternative proposal would cost some £18.6 million to set up, that those costs would be paid back from savings within three years, and that if implemented it would save local taxpayers £24.6 million per year from the fourth year onwards.[53]From a relatively early point section 151 officers, including those from the claimants, have been involved in producing the workbooks. The process was described earlier and the role of the Boundary Committee’s independent financial consultants in producing an assessment of the workbooks mentioned. Workbooks were supplied mid to late September. During the hearing I was informed that the process of assessing affordability continues. The Boundary Committee placed the financial information which it had received on its website, as described earlier. The website also said that the Committee would try to consider further representations despite their being beyond the 26 September end of consultation date. Apparently the advice of the Boundary Committee’s independent financial consultants on affordability is imminent. (Indeed, it became available on 21st November). I should note that preparation of the workbooks has not been assisted because there has been something of a breakdown in relations between the claimants and the Boundary Committee.[54]In my judgment, in the light of publication of the workbooks and other financial information, the Boundary Committee has met its duty to afford those interested in the draft alternative proposal sufficient information to make representations on affordability. Even if there are some question marks over aspects of the workbooks there is enough expertise on both sides quickly to resolve them. In any event the question marks are no inhibition to anyone using the information in the workbooks to make representations on affordability.[55]The issue of timing is, however, crucial. Consultation entails giving consultees early sight of proposals and adequate time in which to make representations which can have a bearing on the outcome. It is not to the point for the Secretary of State to say that where an alternative proposal has been received there is a period of six weeks after that before she can make a decision about whether or not it should be implemented, and that it would be open to her, if she thought it appropriate, to consult more widely before making any order or decision. Because of the clear Parliamentary intention I am unpersuaded by her submission, unsupported by direct authority, that any failure in consultation by the Boundary Committee can somehow be remedied by any consultation which she undertakes. Nor do I regard it as determinative that it is the Secretary of State who makes the decision on whether any proposal is implemented. The issue before me is whether the Boundary Committee, not the Secretary of State, has properly consulted. The Cabinet Office Code of Practice states as best practice that consultation should be for a period of 12 weeks. That was the period given in the July Report for consultation on its draft alternative proposal. Moreover, there needs to be a period during which the Boundary Committee complies with its statutory duty to “take into account” any representations made. As an expert body in these matters that period, I conceive, will only need to be short, not least because on the evidence it has been giving attention to the issue over recent months.[56]In my view, it is somewhat artificial in this case to take any specific date as a notional starting point for consultation on affordability since it has been an iterative process. Moreover, it has been bilateral in character: the local authorities are an important repository of financial information and have been obliged under the legislation to contribute to the preparation of the relevant analysis: section 6(1). The first workbooks were available in mid September. As demonstrated by the extract from the Boundary Committee website, as it was in early November, there have been a number of subsequent adjustments to the workbooks. As well, it is fair to reiterate that questions have been raised about some aspects of them.[57]Taking all that into account, it seems to me that from mid to late September the Boundary Committee was making information available about affordability, enabling interested parties to make representations. If there has to be a starting point for consultation on the topic, that is roughly it. Since then the Committee has indicated, as late as its website on 6th November, that it has continued to receive and consider representations, despite the formal end of the consultation period for the July Report. Using the Cabinet Office consultation period as a guide, and adding a short period for final reflection by the Boundary Committee on late representations, it still seems to me that it will not be possible for the Committee to comply with its duty to consult on affordability if it intends to report by 31 December. I appreciate that it was asked to advise by no later than that date selected, the Secretary of State said, on the basis of an assessment of the time necessary to provide considered advice without unnecessarily prolonging the uncertainty, and to implement any structural change in Norfolk by the earliest possible date of 1 April 2010. While I understand these pressures, the Boundary Committee must comply with the duty which Parliament itself has imposed. At this point, however, the issue of whether the Boundary Committee has complied with its duty to consult on affordability is premature as far as this judicial review is concerned since the period for consultation can be easily extended. This is not one of those exceptional cases where prematurity does not preclude a remedy: R v Secretary of State for the Home Department ex parte Hickey [1995] 1 WLR 734, 757-8. TWO TIER LOCAL GOVERNMENT[58]The claimants submit that it is an important part of the Boundary Committee’s role to compare the benefits of any proposed unitary scheme of local government with the benefits of the current two tier structure. They contend that the Boundary Committee’s exclusion of this issue amounts to an error of law as both a failure to take account of a relevant consideration and a failure to consult. In their submission this ground is not premature because the Boundary Committee clearly indicated in February that that was the approach they were taking. Prior to and during the 12 week consultation on the July Report its approach was that it would not be carrying out such a comparison and it would not be consulting on the matter. The draft alternative proposal indicated that its merits could be assessed by comparing it to other possible patterns of unitary government. There was no suggestion that the Committee would be assisted by a comparison with the current two-tier structure. Indeed, the Committee indicated that in their view it was not their role to make such a comparison. But in the claimants’ submission the benefits of the status quo are a relevant consideration to be taken into account by the Boundary Committee in the exercise of its discretion under section 5, as to whether to provide the advice sought by the Secretary of State, as to what advice to provide, and as to whether or not, and if so, what to recommend. If, for example, upon consideration of the status quo, the Boundary Committee reached the view that the current two-tier system worked extremely well and delivered strong strategic leadership and value for money, and that a unitary scheme would be unlikely to offer such benefits, it could lawfully decide that it was not appropriate to provide advice to the Secretary of State on an alternative proposal for unitary government. If that were its conclusions, a decision to advance an alternative proposal would be likely to be irrational. Two tier as a relevant consideration[59]What is clear is that almost from the outset the Boundary Committee has not seen it as its role in considering whether to give advice to compare the merits of any alternative proposal for unitary local government with the current two-tier system. (The logic of all the Boundary Committee has done suggests that it will give advice but in my view it cannot be said that it has shut its mind against not doing so). Thus in its Frequently Asked Questions (FAQs) it said that “the existing two-tier system will only remain if we are unable to identify an alternative proposal or if the Secretary of State does not choose to implement an alternative proposal”. It confirmed this in the July Report, where it said that “[t]he status quo would only result if we were unable to identify any unitary pattern that meets the criteria in the Secretary of State’s guidance or if the Secretary of State decides not to implement our proposals (para. 2.21).[60]Notwithstanding all this, the Committee’s position is that representations received in support of the retention of the existing two-tier system will be taken into account when it makes its decision as to whether to provide advice to the Secretary of State. That is necessary because the Boundary Committee is bound by statue to take into account any representations made to it: section 6 (5)(a). Moreover, such representations are relevant to an assessment of whether or not any identified pattern of unitary local government carries with it a broad cross section of support, one of the criteria referred to in the Guidance against which the Committee must assess a unitary structure.[61]Need, however, the Boundary Committee to have gone further to compare the merits of the proposed unitary structure with the existing two-tier system? The claimants submit that paragraph 11 of the Request indicates that the Secretary of State was asking the Boundary Committee for advice as to whether it was of the view that a proposal should be made and such a request necessarily requires a comparison of the merits of the proposed unitary structure with the current two-tier system. Such a comparison is also inherent, it is said, in a consideration of the issue of affordability. The Guidance, it will be recalled, provides that the Boundary Committee must have regard to the matters on which it has been requested to advise.[62]In my judgment no such comparison has been required. Unlike previous legislation responding to a request for advice about a proposal does not imply a comparison with the status quo. The 2007 Act does not impose unitary local government on the county. But it contains a presumption in favour of single-tier local government, as evidenced by the sub-heading to sections 1-7 of the 2007 Act. Any proposal prompted by an invitation from the Secretary of State must be for a single-tier of local government: section 2(2)-(5). Moreover, any alternative proposal must be, by statute, a single-tier structure: section 5(5). So, in my view, the statute neither expressly nor implicitly obliges the Boundary Committee to measure any proposal against the existing two-tier structure, either at the point where the Boundary Committee decides whether to provide advice or when it decides what advice to provide. Of course neither point has yet been reached.[63]As far as the Request is concerned, paragraph 11 asked the Boundary Committee to consider, in relation to the Norwich proposal, whether there could be certain alternative proposals of single-tier local government which would have the capacity to deliver the outcomes specified in the five criteria. Posing the question that way did not engage the Boundary Committee in a comparison with the existing two-tier structure. The point is underlined because paragraph 11 specifically invokes the statutory language. Asking whether there are possible alternative proposals of unitary government to deliver the outcomes of the five criteria does not imply any comparison with the status quo. Of course, the Boundary Committee could have decided, in its discretion, to make the comparison, in considering whether to make an alternative proposal to the Secretary of state. If it were to decide not to give advice, it would in effect be commending the existing two-tier structure. Moreover, the Secretary of State could well decide to make the comparison with the status quo in considering an alternative proposal advised by the Boundary Committee. Crucially, however, the Boundary Committee is not obliged to make the comparison under either the statute or otherwise and its omitting to do so cannot be regarded as a failure to take into account a relevant consideration: In re Findlay [1985] AC 318, 333 G-H. Consultation[64]As far as the claimants’ contention on consultation on this issue is concerned, a comparison with the existing two-tier structure was never on the cards. Thus it cannot be said that the Boundary Committee failed to provide sufficient information as to the approach it would take to a comparison with the existing two-tier structure. If there was no obligation to take it into account as a relevant consideration the other alleged deficiencies with regard to consultation also fall away. Delay[65]There is finally the issue of delay in relation to the judicial review on this issue of a comparison with the status quo. Almost from the outset the Boundary Committee made clear that it would not be concerned with any comparison with the existing two-tier structure. Thus it was evident that consultation on this aspect was not contemplated, neither was it to feature in the Boundary Committee’s decision-making. Under ordinary principles the claimants would be barred from raising the issue now for it could hardly be said that the Boundary Committee’s view on this was provisional, open to later revision: cf. R (Burkett) v Hammersmith and Fulham Borough Council [2002] UKHL 23; [2002] 1 WLR 1593, [42]-[43]. Given the importance of the matters at stake, however, it seems to me that any delay on the claimants’ part in instituting judicial review is to be excused. In their case these concerns trump any considerations of good administration that the Boundary Committee has in a timely challenge. CONCLUSION[66]The context in which this claim in judicial review is advanced is, in my view, crucial. What is effectively at stake is the future of the claimants, representative bodies around which local institutional and social patterns will have developed. That places a significant burden on the court to ensure a strict compliance with the law. By the same token the subject of the judicial review, the Boundary Committee, is not an ordinary public authority but a neutral and expert body which falls directly within the remit of Parliament.[67]In my judgment the law imposes on the Boundary Committee a duty to consult on its proposals. That duty is imposed on it by the legislation entrusting it with the task of deciding whether to advise proposals on unitary local government. In the present matter it is reinforced by the Guidance given to it by the Secretary of State and by what it itself has said it would do. An issue on which the Boundary Committee must consult is the affordability of any alternative proposal for unitary local government in Norfolk which it advises. As it itself accepts, affordability is a material consideration in its deliberations although as a matter of law the weight it attaches to that issue is a matter for it. The Boundary Committee is taking affordability into account in its deliberations. It has also well and truly embarked on the task of consulting on the issue. It has provided sufficient information to consultees to enable a considered response. In my judgment, however, there is not enough time for consultees to respond, and for the Boundary Committee conscientiously to take their representations into account, if it is to advise by the year’s end. Neither under the legislation nor otherwise are comparisons with the existing two-tier structure a relevant consideration for the Committee’s deliberations. As well there has been no obligation to consult on that.

Cited in 2 later judgments