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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Shrewsbury & Atcham Borough Council v Secretary of State for Communities and Local Government [2007] EWHC 2279 (Admin) (10 October 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/2279.html Cite as: [2007] EWHC 2279 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		10 October 2007

Mr Justice Underhill:

INTRODUCTION

1. This case arises from the Government's current proposals for the replacement of the current two tiers of local government in some parts of the country by unitary authorities. There are two applications for judicial review before me, the first brought by Shrewsbury and Atcham Borough Council ("Shrewsbury") and the second by Congleton Borough Council ("Congleton"). Shrewsbury is liable to be abolished if a proposal being advanced by Shropshire County Council ("Shropshire") is implemented. Congleton is liable to be abolished if either of two alternative proposals currently being advanced by, respectively, Cheshire County Council ("Cheshire") and Chester City Council ("Chester") is implemented. The Defendant in each case is the Secretary of State for Communities and Local Government. In each case also a number of other local authorities are Interested Parties – not only Shropshire, Cheshire and Chester but several other second-tier authorities potentially affected by the proposals.
2. Shrewsbury's proceedings were issued on 20 April 2007 and Congleton's on 25 May 2007. On 5 June the two applications were ordered by Silber J. to be considered together. Permission to apply for judicial review in both cases was given by King J. following a contested oral hearing on 18 June.
3. Both Claimant authorities are represented before me by Mr. Andrew Arden QC, leading Mr. Jonathan Manning and Miss Laura West. The Secretary of State is represented by Mr. James Eadie. Mr. Richard McManus QC, leading Mr. Andrew Sharland, appears both for Shropshire and for Cheshire. I am grateful to all of them for their helpful submissions, both written and oral. The other Interested Parties are not represented.

THE FRAMEWORK FOR THE PROPOSALS

4. In October 2006 the Secretary of State presented to Parliament a White Paper entitled Creating Strong and Prosperous Communities (Cm 6939-I). This expressed the opinion that in some shire areas in England the replacement of the standard two-tier arrangements by a unitary authority was likely to be desirable. Local authorities in such areas were invited to make proposals for unitary local government which

enhance strategic leadership, neighbourhood empowerment, value for money and equity;

command a broad cross-section of support; and

are affordable, representing value for money and meeting any costs of change from councils' existing resources

(White Paper para. 3.55).

5. In accordance with the policy stated in the White Paper the Secretary of State simultaneously issued an invitation to local authorities in England to make "proposals for future unitary structures". The invitation is contained in a formal document called Invitations (the plural reflects the fact that it also contains a separate invitation to councils to make proposals to act as "pathfinders" for "new two-tier models", but that aspect is immaterial for present purposes). It was made clear that it was a matter entirely for the discretion of individual authorities whether to respond to the invitations. Section 3 of the document explains the criteria for proposals for unitary authorities. Para. 3.1 reads as follows:

The criteria with which any proposal must conform are:

i) the change to the future unitary local government structures must be:

• affordable, i.e. that the change itself both represents value for money and can be met from councils' existing resource envelope; and

• supported by a broad cross section of partners and stakeholders; and

ii) those future unitary local government structures must:

• provide strong, effective and accountable strategic leadership;

• deliver genuine opportunities for neighbourhood flexibility and empowerment; and

• deliver value for money and equity on public services.

Though they are put in a different order and slightly amplified, it will be seen that the five criteria identified in those bullet points essentially correspond to those identified in the White Paper itself. The rest of section 3 gives further detail and explanation of what the criteria entail. For present purposes I need only set out para. 3.5, which, under the heading "a broad cross section of support", glosses the second bullet of criterion (i). It reads as follows:

The Government recognises that any proposal may not carry consensus from or within all sectors. While no single council or body, or group of councils or bodies, will have a veto, it will be necessary for any proposal to have support from a range of key partners, stakeholders and service users/citizens. The Government will consult on proposals that it is minded to implement prior to taking any final decisions.

6. Any proposals were to be submitted to the Department by no later than 25 January 2007 (Invitations para. 2.9). Section 5 of Invitations sets out how the Government intended to handle the process of deciding which, if any, of the proposals which it received should be implemented. Three stages are specified. Stage 1 would consist of an initial assessment of whether the proposals conform to the criteria specified in section 3. The detailed provisions read as follows:

5.3 Proposals will be subject to an initial assessment to ensure that they conform to the terms of the invitation (see paragraphs 2.3 – 2.7).

5.4 Those which conform will be assessed against the criteria in section 3 of this invitation.

5.5 In carrying out that assessment, the Government may request further information from the council/councils submitting the proposal, from other councils affected by the proposal, and from such other persons or bodies as it considers appropriate.

5.6 Where information is not available to the Government, or otherwise, the Government may when considering a proposal make such assumptions and estimates as it sees fit.

5.7 The Government will reach its judgment on a proposal having regard to the proposal, to any information submitted to it following a request as described in paragraph 5.5, and to such assumptions and estimates it has made in connection with the proposal. It may also have regard to any other information available to it and Government policy which it considers relevant to reaching the judgment.

5.8 Only proposals which in the Government's opinion meet the criteria set out in section 3 will proceed to stage 2 of the process.

At the end of March 2007 the Government would announce which proposals would and would not proceed. Stage 2 would consist of consultation. Paras. 5.10-12 reads as follows:

5.10 At stage 2, the Government will consult widely with partners/stakeholders in the areas affected by the proposals. Partners/stakeholders will thus have an opportunity to make representations about proposals that potentially will affect them. For these purposes, partners/stakeholders include all local authorities, the wider public sector (e.g. police, health, Learning and Skills Council, RDA), business community, voluntary and community sector. It is intended that this consultation would be launched at the end of March with a 12 week consultation period.

5.11 During this period, the business case may also be further developed in discussion with authorities and stakeholders. In addition the financial case underpinning a proposal that proceeds to stage 2 will be subject to limited assurance in relation to the submissions of baseline figures. This will be carried out by the Audit Commission and the cost will be borne by the councils making the proposals.

5.12 The Government intends that the consultation stage of the process will be completed by the end of June 2007.

Stage 3 is described at paras. 5.13-14 as follows:

5.13 Following consultation, the Government will re-assess proposals to take account of:

i) the outcome of a stakeholder consultation to be held on each proposal; and

ii) any further development of the business case.

5.14 The Government intends to announce, by the end of July 2007, which proposals will proceed to implementation.

7. It was acknowledged in both the White Paper and Invitations that the implementation of any successful proposal advanced under the arrangements identified above could not be effected without primary legislation. Part 2 of the Local Government Act 1992 does indeed provide a mechanism for "structural change" in local government, including the introduction of unitary authorities, but that involves an elaborate procedure, under the auspices of the Electoral Commission and the Boundary Committee for England, which the intended arrangements would not employ. A bill intended to give the Government the necessary powers – the Local Government and Public Involvement in Health Bill ("the Bill") – was introduced in Parliament on 12 December 2006, but it has not yet been enacted: it is expected that it will become law in November this year.

THE PROPOSALS AND THEIR CONSIDERATION

8. Shropshire. In response to the Secretary of State's invitation Shropshire (together with Oswestry Borough Council and South Shropshire District Council^[1]) submitted a proposal for a unitary authority for the whole county. Shrewsbury lodged representations with the Secretary of State at both stage 1 and stage 2 opposing the proposal. Those representations included independent reviews of Shropshire's proposal by Capita Advisory Services and by Professor Michael Chisholm of the Department of Geography at Cambridge University; they also included the results of ballots conducted by Shrewsbury itself and by South Shropshire and Bridgnorth District Councils. By letter from Mr. Paul Rowsell, the Deputy Director for Local Democracy at the Department, dated 27 March 2007, Shropshire was notified that its proposal would continue to stage 2. On 25 July Mr. Rowsell notified Shropshire that "the Secretary of State is minded to implement your proposal if and when [the Bill] becomes law" – in other words, that it had successfully passed through stages 2 and 3.
9. Cheshire. Both Cheshire and Chester advanced proposals in response to the Secretary of State's invitation. Cheshire's proposal was for a single unitary authority for the whole county. Chester's (which had the support of some other district councils) was for two unitary authorities, one for the east of the county and one for the west. Congleton, with Crewe and Nantwich District Council, lodged representations with the Secretary of State for the purpose of stage 1 opposing both proposals. Both Cheshire and Chester were notified by Mr. Rowsell on 27 March 2007 that their proposals had passed stage 1. Following the consultation under stage 2 and the Secretary of State's assessment at stage 3, both were judged to meet the criteria, subject to one area of concern about the affordability of Chester's proposal; but since a choice had to be made between them the Secretary of State decided that Chester's proposal was (subject to that concern) the preferable alternative. Accordingly, by letter dated 25 July Chester was notified that the Secretary of State was minded to implement its proposal provided that the affordability concern could be addressed by further work which it was asked to undertake. Cheshire was notified that the Secretary of State was not minded to implement its proposal. It was however shortly afterwards made clear, by a letter from Mr. Rowsell to Chester dated 7 August (copied to Cheshire), that if Chester was unable to satisfy her on the remaining area of concern she would revert to Cheshire's proposal. To that extent therefore the decisions of 25 July (in so far as they were decisions at all) were provisional.
10. The proposals relating to Shropshire and Cheshire were not the only proposals received pursuant to the Secretary of State's invitation. The Government in fact received 26 proposals in all, of which sixteen proceeded beyond stage 1 and nine have been accepted for implementation if the Bill is passed.

THE ISSUES

11. The claims in both cases were issued following the announcement of the result of stage 1. Accordingly the only decisions originally challenged were those contained in the letters of 27 March 2007. However, the Claimants have sought leave to amend to challenge also the decisions of 25 July, i.e. in the case of Shrewsbury the decision to proceed (subject to enactment of the Bill) with Shropshire's proposal and in the case of Congleton the equivalent (albeit provisional) decision as regards Chester's proposal. Mr. Eadie for the Secretary of State did not oppose that application, which is accordingly granted. The effect of the decisions of 25 July is that Cheshire is no longer so directly interested in the outcome of the challenge as when its own proposal was still in play. That might have had an impact on the position before me of Mr. McManus, who represented only Cheshire County Council and not Chester City Council (though in practice his main submissions were equally applicable to the case of either). However, the effect of the letter of 7 August is that Cheshire may yet be directly affected; and Mr. Arden made clear that in so far as it embodies a contingent decision to approve Cheshire's proposal, Congleton would wish to challenge that also. Mr. Eadie did not in the end object to that course either.
12. Mr. McManus submitted, albeit with professed reluctance, that the decisions of 25 July, and a fortiori the quasi-decision of 7 August, were not decisions in a sense which could attract judicial review. He referred me to the well-known passage in the speech of Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, at pp. 408-9. I do not accept that submission. The decisions in question seem to me plainly sufficiently final to be susceptible to judicial review.
13. Mr. Arden submitted that the decisions should be quashed on three distinct grounds – (1) that the Secretary of State had no power to invite the local authorities to make the proposals that she did for or to take the steps that she did in response to the proposals that she received; (2) that the Secretary of State was not entitled to find that any of the proposals satisfied the "broad cross section of support" criterion; and (3) that the Secretary of State had conducted the consultation at stage 2 unfairly by refusing to include on the relevant page of the Departmental website a link to the relevant web-pages of those authorities which opposed the proposals. I consider those grounds in turn.

GROUND (1): VIRES

14. Mr. Arden put his case under this ground in essentially two ways, although they may to some extent overlap. His first submission was that since the actions of the Secretary of State in inviting, assessing and reaching conclusions with regard to the proposals were essentially "governmental" in character, they could only lawfully be undertaken if she had statutory authority (express or implied) so to act or if the acts in question fell within the scope of the royal prerogative; and that neither was the case. There could be no question of any statutory authority since, as the Secretary of State expressly acknowledged, the proposals which she was soliciting and promoting fell outside the existing statutory regime for local government restructuring; and, he submitted, the acts in question were not prerogative acts in the proper sense of that term. His second submission was that even if the Secretary of State's powers were not in principle limited in the way for which he contended she was in the circumstances of the present case constrained from taking the steps that she did because they were inconsistent with the express statutory regime governing local government restructuring contained in Part 2 of the 1992 Act.
15. I start by considering Mr. Arden's primary submission. Mr. Eadie freely acknowledged that the Secretary of State's acts in question were not authorised (whether expressly or by implication) by any statute, and he disavowed reliance on any specific prerogative power (though as to this, see para. 18 below). But he contended that those were not the only available sources of authority. He submitted that it was well established that Ministers had power to take steps of a "governmental" character without authority of either of those kinds. He relied principally on R. v. Secretary of State for Health ex p. C [2000] 1 FLR 627. In that case the Secretary of State had for many years maintained a list – the so-called "Consultancy Service Index" - of persons who had convictions for child sex offences or in relation to whom other official information was held which suggested that they were unsuitable to work with children: all persons proposing to engage employees to work with children were "expected to" check with the list. The system had no statutory basis. The applicant contended that the Secretary of State had no power to maintain the Index. Both Richards J. at first instance and the Court of Appeal (Lord Woolf MR, Hale L.J. and Lord Mustill) rejected that contention. The relevant passage in the leading judgment given by Hale L.J. is as follows (pp. 476-8)^[2]:

Is the Index lawful ?

13. Mr Levy QC argues that the Crown has no power to maintain the Index without statutory authority. He relies upon the following statement from Halsbury's Laws of England (Butterworths, 4th edn reissue), vol. 8 (2), para 101:

'According to this traditional view of the doctrine of parliamentary sovereignty, the liberties of the subject are merely implications drawn from two principles, namely: (1) that individuals may say or do what they please, provided they do not transgress the substantive law, or infringe the legal rights of others; and (2) that public authorities (including the Crown) may do nothing but what they are authorised to do by some rule of the common law (including the royal prerogative) or statute, and in particular they may not interfere with the liberties of individuals without statutory authority.'

14. This passage finds a recent echo in the words of Laws J (as he then was) in R v Somerset County Council, ex p. Fewings and others [1995] 1 All ER 513, 524:

'For private persons, the rule is that you may do anything you choose which the law does not prohibit. It means that the freedoms of the private citizen are not conditional upon some distinct and affirmative justification for which he must burrow in the law books. Such a notion would be anathema to our English legal traditions. But for public bodies the rule is the opposite, and so of another character altogether. It is that any action taken must be justified by positive law. A public body has no heritage of legal rights which it enjoys for its own sake; at every turn, all of its dealings constitute the fulfillment of duties which it owes to others; indeed it exists for no other purpose.'

15. This distinction was repeated by Bingham MR in the same case in the Court of Appeal at [1995] 1 WLR 1037, 1042. But that case concerned a local authority, which is itself a creature of statute.

16. The Crown is not a creature of statute and in one respect at least is clearly different from a local authority. The Crown has prerogative powers. But what does this mean ? Professor Sir William Wade, in Wade and Forsyth Administrative Law (Clarendon Press, 7th edn, 1994), at pp 248-249, draws a clear distinction between prerogative and other powers:

'"Prerogative" power is, properly speaking, legal power which appertains to the Crown but not to its subjects. Blackstone explained the correct use of the term … Although the courts may use the term "prerogative" in this sense, they have fallen into the habit of describing as "prerogative" every power of the Crown which is not statutory, without distinguishing between powers which are unique to the Crown, such as the power of pardon, from powers which the Crown shares equally with its subjects because of its legal personality, such as the power to make contracts, employ servants and convey land.'

17. There is no suggestion of a specific prerogative power in this case but Halsbury's Laws of England, vol. 8 (2), at note 6 to para 101, confirms that 'At common law the Crown, as a corporation possessing legal personality, has the capacities of a natural person and thus the same liberties as the individual '. It was on this ground that Richards J declined to hold that the Index was unlawful.

18. Could then a private individual maintain a list such as this ? There are, of course, examples of such lists in other contexts, such as credit rating. Neither the Crown nor a private individual may exercise their freedoms in such a way as to interfere in the rights of others without lawful authority. Entick v Carrington (1765) 2 Wils. 275 is perhaps the best known example of that principle. It concerned a clear interference with property (at 291):

'… our law holds the property of every man so sacred that no man can set his foot upon his neighbour's close without his leave. If he does, he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground he must justify it by law … we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society, for papers are often the dearest property a man can have.'

19. This may be compared with Malone v Metropolitan Police Comr [1979] Ch 344, in which the court was unable to detect a private right, whether of property, privacy or confidentiality, with which the tapping of his telephone interfered.

20. Mr Levy suggests that the Index is an interference with the right to work in one's chosen profession. He cites, as the 'high point' in the recognition of such a right the case of Nagle v Feilden [1966] 2 QB 633: the Court of Appeal held that it was arguable that the jockey club's policy of refusing a trainer's licence to a woman was contrary to public policy. Lord Denning MR made some observations about the remedies which might be available to those denied entry to a 'closed shop' operated by a trade or profession. Mr Levy has drawn our attention to numerous statutory provisions dealing with such situations.

21. There is a clear distinction between being denied or deprived of a qualification or licence which is essential for the lawful conduct of the occupation in question and what occurred in this case. The appellant is an unqualified social worker. He was not being deprived of any qualification. No one has a right to be provided with a job. Employers are free to pick and choose whomever they wish to employ. They may do so for good or bad reasons, subject only to the laws prohibiting discrimination on grounds of race, sex or disability. What anyone has is the right to apply for a job. He may also have certain other rights connected with that right, for example in relation to the giving of references. Subject to complying with those rights, it seems to me that private citizens are free to maintain services such as this. I conclude, therefore, that maintaining the list is not, in itself, unlawful.

16. Mr. Arden submitted that the only point being made in that passage is that, since the Crown has the same capacity as a private person, it does not need statutory authority to do acts of an essentially private character: accordingly the reasoning has no application to a case of the present kind where the acts for which authority is required are of a governmental character. Hale L.J.'s formulation – at para. 18 - of the dispositive question as being "[whether] a private individual [could] maintain a list such as this" lends some colour to that submission; and I note also that the examples of "non-prerogative" powers given by Professor Wade in the passage quoted at para. 16 are indeed all of a private character. Nevertheless, I do not think that Mr. Arden's submission represents the true ratio of the judgment. The maintaining of the Index was not, as the Court of Appeal will certainly have appreciated, an act like renting office accommodation or buying paper-clips. It cannot realistically be regarded as anything other than (in Mr. Arden's terminology) a governmental act, and one whose exercise would – as Hale L.J. expressly recognised elsewhere in the judgment - have a profound adverse impact on the persons included on the list. It was plainly of a character reviewable as a matter of public law, and indeed in the following section of the judgment Hale L.J. considered whether the maintaining of the list could be challenged on ordinary judicial review criteria. Thus when she raised the question whether a private individual could have maintained such a list, Hale L.J. was in my judgment evidently not asking whether the act in question was of a purely private character. The issue with which she was, rather, concerned appears from the passage which immediately follows in para. 18, where she considers whether the maintaining of the Index involved any interference with the rights and liberties of the subject. If it did, then as a matter of constitutional principle – whence the reference to Entick v. Carrington – it required positive authorisation by statute or a specific recognised prerogative power. But if it did not, then it was within the powers of the Crown simply by virtue of its having legal personality. That is the distinction which Hale L.J. is concerned to make. Thus the reason why she holds that the maintaining of the List is intra vires is that, as she concludes in para. 21, it involved no infringement of any recognisable right or liberty. Whatever the indirect impact of the inclusion of a person on the Index, there was no purported exercise of authority: no-one was being made to do, or prevented from doing, anything.
17. On that analysis, the decision in ex p. C does indeed mean, as Mr. Eadie submitted, that the fact that the Crown enjoys legal personality means that it is prima facie entitled - so far as vires in the strict sense are concerned - to do any lawful act, even if the act in question is plainly governmental.^[3] I say "prima facie" because such power is limited in a number of important ways. In particular:

- It does not, as discussed above, extend to any act involving interference with the rights and liberties of the subject.

- Its exercise is reviewable on ordinary public law grounds.

- It does not operate in any "field" in which Parliament has chosen to legislate: as to this, see paras. 20-22 below.

Accepting Mr. Eadie's analysis does not therefore give carte blanche to the executive.

18. The above analysis should not in truth be controversial. It has long been recognised that Ministers may in certain circumstances have the power to take "governmental" action without the support of any statutory authority (whether express or implied). The classic example in the case law is the creation of the Criminal Injuries Compensation Board, described by Diplock L.J. in R. v. Criminal Injuries Compensation Board ex p. Lain [1967] 2 QB 864, as a body "not constituted by statute or statutory instrument but by act of the Crown, that is the executive government, alone" (see at p. 883 C-D). Until recently such actions have generally been described as exercises of "prerogative" power. Ex p. C is only (perhaps) novel in that it eschews that terminology, accepting Professor Wade's position that it is best confined to the limited number of recognised "specific prerogative powers". I have been referred to a number of academic articles, or passages from textbooks, which discuss how the powers in question should best be characterised and labelled: the most recent survey is that of Professor Harris at [2007] LQR 225. I need not contribute to that debate, beyond saying that the most workmanlike description seems to me to be simply "common law powers": I note that that is the term used by members of the House of Lords in the recent case of R. (Hooper) v. Secretary of State for Work and Pensions [2005] 1 WLR 1681 (where the question whether the Secretary of State might have had a power at common law to make certain ex gratia payments was alluded to though not decided) - see at paras. 6, 44-47 and 123. Apart from that, it is sufficient for me to say that I am satisfied that the power exists and to reject Mr. Arden's submission that there can be no such power in the present case because no specific prerogative power is engaged.
19. On that basis, Mr. Arden's first submission cannot succeed. Although the Secretary of State was indeed very active in relation to the proposals, and expended significant resources in promoting and considering them, she at no time purported to exercise any authority over any other person (natural or artificial). The case seems to me on all fours with ex p. C, and indeed – ignoring the language of "prerogative" – with ex p. Lain.
20. I turn to Mr. Arden's second submission, namely that the steps taken by the Secretary of State were inconsistent with the statutory regime governing local government restructuring contained in Part 2 of the 1992 Act. It is well established that the Crown may not use prerogative or other common law powers in a "field" which is already the subject of statutory regulation: see such cases as Attorney General v. De Keyser's Royal Hotel Ltd. [1920] AC 508, R. v. Secretary of State for the Home Department ex p. Fire Brigades Union [1995] 2 AC 513 and Hooper (above) in the Court of Appeal [2003] 1 WLR 2623 (esp. at paras. 120-137). The rationale of that rule is straightforward: if Parliament has legislated in such a way as to evince an intention to regulate the entire field in question, it is necessarily to be inferred that it intended to exclude any governmental action in that field otherwise than in accordance with the statutory scheme. But I do not believe that that reasoning applies to action of the present kind – that is, to action taken by Ministers by way of preparation for the introduction of a different statutory regime. If it did, the result would be to stifle any kind of consideration of, or preparation for, change in any field which was already subject to statutory regulation. In principle, it would be unlawful for any resources to be devoted to such a project – no civil servant could so much as lift a pen - unless and until paving legislation had been put in place^[4]: that seems unreal. I do not believe that the fact that Parliament has legislated to put in place a particular statutory scheme carries the necessary inference that Ministers may thereafter do nothing that might be calculated or intended to replace that scheme.
21. Mr. Arden sought to counter that line of argument by pointing out how far down the road the Secretary of State has gone. He disavowed any submission that Ministers did not have the power, for example, to undertake genuinely preparatory work such as might be necessary to produce a White Paper. But the Secretary of State had in the present case gone much further. He emphasised that the decisions recorded in the letters of 25 July 2007 were in substance final decisions, contingent only on the passage of the Bill. That may be so. But it seems to me that once it be conceded that in principle preparatory work of this kind may be lawful it is impossible to define meaningful boundaries of the kind necessary to Mr. Arden's submission. In my judgment such work will only cease to be lawful at the point at which the Minister purports to exercise actual governmental authority in a manner inconsistent with the existing statutory regime.
22. I am supported in that conclusion by the decision of the Divisional Court in R. v. Secretary of State for Health ex p. Keen (1990) 3 Admin LR 180. In that case the Secretary of State wished to promote a major reorganisation of the National Health Service involving the creation of self-governing hospital trusts. In advance of the enactment of any legislation authorising the introduction of the new system he invited hospital boards to apply for trust status and promoted a wide range of preparatory work paving the way for the introduction of the new system which involved both his own department and the existing regional and district health authorities in very substantial expenditure of resources. It was argued that he had no power to do so unless and until legislation for the purpose was enacted. The Divisional Court (Woolf L.J. and Pill J.) rejected that argument. The key passage in the judgment of Woolf L.J. reads as follows:

Having set out the statutory provisions, I return to consider the combined effect of ss. 2, 3 (1) and 23 [of the National Health Service Act 1977] on the activities which the Secretary of State and the health authorities contend they are entitled to perform prior to the enactment of the Bill. Is it, as Mr Goudie attractively contends, a case of the Government, the RHA and the DHA "distorting the inception of the Act by having a period of gestation before conception as nature requires" ? In more conventional terms, is this a situation where the Government cannot lawfully expend large sums of public money on the making of preparations for the implementation of a Bill before it becomes law without paving legislation to authorise the expenditure ?

The conclusion to which I have come on a consideration of the legislation to which I have referred is that while the Secretary of State does not have the power to approve an application and an RHA or DHA does not have the power to make a binding decision to apply for NHS trust status for a hospital within their area in anticipation of the Bill becoming law, there is nothing to prevent the Secretary of State and the two authorities deploying their resources under their existing powers to enable the necessary steps to be taken to prepare an application, so that when the legislation is passed the application can be made promptly if this is in accordance with the decision which is then made.

Whether under s. 2 (a) or (b) (it does not matter which) and s. 23, the Secretary of State has the power, and by delegation the RHA and DHA have the power necessary for forward planning. In pursuing that forward planning regard has to be had to changes which may be brought about by all manner of circumstances, including prospective legislation, which will have a direct impact upon their functions.

If in the future a new type of hospital is going to be available, health authorities can reasonably consider whether that is a facility which they should provide, having regard to their duty to provide hospital accommodation themselves or by taking advantage of s. 23. If they come to the conclusion that it probably should be provided, then to defer preparations until some necessary legislation comes into force could amount to a derogation from the authorities' responsibilities. Until the new legislation is in force final decisions cannot be reached, but as long as the authorities do not fetter their ability to reach those final decisions, there is nothing to prevent them taking all necessary steps by way of preparation. Those can include the preparation of applications. The preparation of the application could provide insight as to the desirability in due course of reaching a decision to make the application.

The evidence on this application makes it clear that a considerable proportion of the energy and finance which has been devoted to the preparation of the application would have been involved evened if there had been no proposed change in the legislation. This in itself cannot justify the expenditure which would not have been incurred, but it does indicate the similar nature of the exercise which would be performed in any event and underlines the fact that forthcoming legislation is only one of the future events which has to be taken in to account in conducting the forward planning which is an integral part of good administration.

Although initially it does appear surprising that large sums of money and considerable resources can be expended in anticipation of legislation, where the existing powers of the Secretary of State and the authorities are as wide as they are here, there is nothing to prevent the authorities choosing to make the preparations necessary to prepare for that legislation.

For these reasons I would dismiss this application.

23. It might appear at first sight that the decision in ex p. Keen was indistinguishable from the present case. Strictly, that would not be right. The reasoning depended on the view which the Court took of the extent of the Secretary of State's existing, exceedingly broad, statutory powers under the 1977 Act. Mr. Eadie acknowledged that the Secretary of State enjoyed no equivalent statutory powers in the present case. Nevertheless, the case supports the view that there is nothing inherently wrong in a Minister acting in the manner challenged by the Claimants. I put it to Mr. Eadie that he was, in effect, saying that the Secretary of State in the present case enjoyed at common law the same powers which the Divisional Court in ex p. Keen held that the Secretary of State for Health enjoyed under s. 1 of the 1977 Act. He accepted that characterisation of his argument but submitted that it was a conclusion which I should not find objectionable. I agree.
24. Accordingly, I reject both Mr. Arden's arguments in support of Ground 1. I hold that the Secretary of State had the powers to take steps which she has taken. I should add for completeness that Mr. Arden accepted that if the Secretary of State had the necessary powers he could not challenge the powers of the various local authorities to respond to her invitations and otherwise co-operate in the forwarding of her proposals. If necessary, statutory authority could be found in s. 2 of the Local Government Act 2000.
25. I should mention four other points which were canvassed before me but which are not in the event central to my reasoning.
26. First, Mr. Arden placed some reliance on the terms of the European Charter of Local Self-Government, which was promulgated by the Council of Europe in 1985 and ratified by the United Kingdom on 3 June 1997, so as to take effect from 1 August 1998. The preamble to the Charter emphasises the importance of local authorities as among the main foundations of any democratic system; and art. 4.4 provides that powers given to local authorities "… may not be undermined by another, central or regional, authority except as provided for by the law". The Charter is a treaty, and its provisions are not incorporated into domestic law; but on ordinary principles they would be admissible as an aid to construction of domestic legislation or in considering what the law is on a doubtful point. However, I did not find the provisions referred to by Mr. Arden of any real assistance. Although it can no doubt be argued that unitary local authorities are "less democratic" than a two-tier system – since they are larger and provide for many fewer elected representatives – the issues in the present case are not concerned with the merits of that change in itself but rather with the means by which it is being introduced. The question whether those means involve the "undermining" of local authorities is too vague to be justiciable; but in any event the Claimants' objections in these proceedings are not so much based on any undermining of local authorities as on (if anything) the undermining of Parliament.
27. Secondly, Mr. Eadie sought to persuade me that the work so far done was not necessarily inconsistent with the regime for local government restructuring provided for in Part 2 of the 1992 Act. He submitted that everything done by the Secretary of State could if the Bill were not enacted be treated as work preparatory to a request to the Electoral Commission under s. 13. I am doubtful whether, if I had accepted Mr. Arden's other submissions, I would have been persuaded by this argument; but I need reach no final view on it.
28. Thirdly, Mr. McManus advanced a further argument in support of the Secretary of State's authority to act as she had done, namely that her promise in the White Paper that she would consult about the proposed changes necessarily meant that she had the power to proceed as she had: he referred in particular to R. (Greenpeace Ltd.) v. Secretary of State for Trade and Industry [2007] EWHC 311. This submission gave rise to some potentially difficult questions, and since I do not need to consider it here I prefer not to do so.
29. Fourthly, I heard some argument about the terms of cl. 21 of the Bill. This provides (as it stands at present) as follows:

21 Pre-commencement invitations etc

(1) In this section a "pre-commencement invitation" means an invitation given by the Secretary of State before the commencement of this Chapter which, after that commencement, could have been given under the power in section 2.

(2) If before the commencement of this Chapter—

(a) a pre-commencement invitation was given,

(b) guidance as to what a proposal should seek to achieve, or as to matters that should be taken into account in formulating a proposal, was given by the Secretary of State in connection with such an invitation,

(c) a proposal was made in response to such an invitation, or

(d) consultation was carried out by the Secretary of State in relation to such a proposal,

it is immaterial that the invitation or guidance was given, the proposal made, or the consultation carried out, before rather than after the commencement of this Chapter.

(3) Accordingly (and without prejudice to the generality of subsection (2))—

(a) any reference in this Chapter to an invitation under section 2 includes a pre-commencement invitation;

(b) any reference in this Chapter to a proposal made by virtue of section 2 includes a proposal (whenever made) made in response to a pre-commencement invitation;

(c) any reference in this Chapter to the Secretary of State's receiving a proposal in response to an invitation under section 2 includes his receiving before the commencement of this Chapter a proposal made in response to a pre-commencement invitation.

A "pre-commencement invitation" is defined so as to cover an invitation of the kind made in Invitations and responded to by Shropshire, Cheshire and Chester in the present case. The apparent intended effect of the clause is to allow the steps taken by the Secretary of State which are in issue in the present case to be treated as taken in accordance with the regime contained in the Bill. Mr. McManus submitted that if clause 21 were enacted in that form it would mean that the present challenge, at least so far as based on ground 1, would become entirely academic. There was some discussion before me as to whether that ought to affect the timetable within which I sought to produce this judgment. But Mr. Arden disputed whether cl. 21 would in fact have the effect contended for; and Mr. Eadie expressed considerable unease as to whether it was appropriate for me, in the context of determining a subsidiary issue in the present litigation, to express a view as to the meaning and effect of a clause in a bill at present before Parliament. I do not find it necessary to do so. It seems to me that the right course is for me to determine the issues raised by this litigation on the basis of the law as it now stands. So far as the timing of the judgment is concerned, the exigencies of vacation business in the Administrative Court have meant that I have not been able to produce it as soon as I would have hoped; but I see no reason to defer giving judgment any further.

GROUND 2 – "BROAD CROSS SECTION OF SUPPORT"

30. As set out at para. 5 above, in para. 3.5 of Invitations the Secretary of State identified as one of the key criteria for approval of any proposal that it could be shown to be "supported by a broad cross section of partners and stakeholders", and that phrase is expanded later in section 3 by the statement that:

While no single council or body, or group of councils or bodies, will have a veto, it will be necessary for any proposal to have support from a range of key partners, stakeholders and service users/citizens.

I will refer to the criterion so identified as "the support criterion". Mr. Eadie was not able to explain why "service users/citizens" appeared in the expanded statement of the criterion but not in the primary formulation; but none of the parties suggested that any particular significance should be attached to the point, and it was common ground before me that in deciding whether this criterion was met the views of this third class needed to be taken into account. It was common ground that the requirement that the proposal enjoyed support from the classes in question, or a "broad cross section" of those classes, was not to be read as a requirement that councils demonstrate that the proposals were or would be supported by a majority (however that might be assessed) of members of those classes, either separately or collectively: substantial support was enough. It was also common ground that the Secretary of State's assessment of whether the support criterion was met involved what was essentially an exercise of judgment which could only be challenged on Wednesbury grounds.

31. The evidence about the information available to the Secretary of State as regards the support criterion in each of the three proposals is set out in some detail in the third witness statement of Mr. Rowsell at paras. 16-26. It can be summarised as follows. As regards Shropshire I focus only on support from service users/citizens since there is no issue about key partners and stakeholders.
32. Shropshire:

(1) In its proposal document Shropshire addressed the issue of "public support" by reference to an exercise conducted by Ipsos MORI in April 2006 involving three "community discussion evenings" attended by, in all, some 65 residents selected in order to constitute a representative cross section. The results were not given in the form of a "for" or "against" conclusion. Instead, Ipsos MORI reported that the issue was not one of burning interest – "they do not talk about local government structure in the pubs of Shropshire" - and that views were likely to depend on what information was supplied; that "once residents think about it, they realize there is a case for (and against) change"; and that "residents … will need to be convinced on some key questions", which are then set out.

(2) As noted above, Shrewsbury, South Shropshire and Bridgnorth conducted ballots among their local electorates in January 2007. Turnouts in all three were low. In all three there was a majority against the introduction of a unitary authority. In Shrewsbury the proportions were 67% against and 33% for; in South Shropshire 57:43; and in Bridgnorth 86:14. The results in question were submitted to the Secretary of State in April 2007.

(3) Mr Rowsell's letter of 27 March graded "the likelihood of your proposal achieving the outcomes specified by the criteria" as "high", "reasonable" or "low". The likelihood of Shropshire's proposal achieving a "cross section of support" was assessed as reasonable.

(4) In June 2007, as part of stage 2, Shropshire submitted further representations on this aspect. These can be summarised as follows:

(a) They described a number of further "community consultation events", which did not however involve any measurement of opinion for and against the proposal.

(b) They included a commentary on the poll results from Shrewsbury, South Shropshire and Bridgnorth by Professors Rallings and Thrasher of the Local Government Chronicle Elections Centre at the University of Plymouth. This noted some qualifications on the reliability of the results, particularly about a degree of bias in the material available to those voting, but concluded that

The decisive margin in both Shrewsbury and Atcham and Bridgnorth means that the result is a fair reflection of the balance of opinion of those who voted in these areas, taking into account our comments on the nature of the information electors received before the poll. The result in South Shropshire is rather narrower. This is likely to reflect both the different question asked, and the fact that the information given to electors contained stronger and more authoritative statements of the "yes" case.

(c) They gave the results of a telephone survey carried out by Ipsos MORI in June 2007, which, again, does not appear to have addressed directly the question of "for" or "against" but which revealed a large majority saying that they "would like more information before making up their mind on the issue of a single council for Shropshire". The Council emphasised that last finding and submitted that it justified the conclusion that there was "a reasonable to high likelihood of support", presumably on the basis that many people at least would be convinced as they came to learn more of the benefits which key partners and stakeholders already understood.

(It also appears that North Shropshire District Council carried out a telephone poll, with very limited numbers, in December 2006/January 2007 which showed a majority in support of the proposal, but I am not clear whether the results of this poll were communicated to the Secretary of State.)

(5) In the letter of 25 July Mr. Rowsell addressed each of the criteria in turn. As regards the "support" criterion he said:

The Secretary of State considers that while there is strong opposition from some district councils, the proposal has the support of key stakeholders in the public sector and business. In addition, whilst certain districts carried out polling which came down heavily against the proposal for a unitary council for the County, the Secretary of State considers that the climate in which the polls took place, including the information that was available to voters either directly or as a result of press debate suggests that the results need to be viewed with caution. Overall therefore, she concluded that there was a reasonable likelihood of the proposals achieving the outcomes specified by this criterion.

33. Cheshire. Neither Cheshire nor Chester in their proposals expressly dealt with the support criterion. This omission was pointed out in Congleton's representations to the Secretary of State and she asked the two councils to address it. Both responded, in writing and at meetings with the Department, with reasons why they believed that support was likely to be forthcoming. The letters of 27 March gave a "likelihood grade" of "reasonable" on this criterion for both Cheshire's and Chester's proposal. Poll results were subsequently submitted which, though my attention was not drawn to the details, apparently appeared to show a lack of support for both unitary proposals. As for the letters of 25 July, the letter to Cheshire dealt with this criterion as follows:

The Secretary of State acknowledges that the proposal does not have the support of the districts, whilst the support of some key stakeholders is mixed. However, of those that responded directly to the consultation, the Secretary of State considers there to be a broad majority in favour amongst parishes, the third sector and amongst business interests and the public. Whilst the districts carried out polling which came down heavily against the proposal for a unitary council for the County, the Secretary of State considers that the climate in which the polls took place, including the information that was available to voters either directly or as a result of press debate suggests that the results need to be viewed with caution. On balance, therefore, she concluded that there is reasonable likelihood of your proposal achieving the outcomes specified by the criteria.

The equivalent passage in the letter to Chester was as follows:

The Secretary of State notes that there appears to be mixed evidence of a broad cross-section of support. She notes that the bid has strong support amongst other principal councils with four of the districts offering their support for the proposal in one form or another, whilst the remaining two districts oppose both Cheshire unitary options. Finally, whilst the districts carried out polling which came down heavily against both unitary proposals in Cheshire, she considers that the climate in which the polls took place, including the information that was available to voters either directly or as a result of press debate suggests that the results need to be viewed with caution. On balance, therefore, she concluded that there is a reasonable likelihood that the outcomes specified in this criterion will be achieved by your proposals.

34. Mr. Arden's principal submission was that it is clear from the terms of Invitations that the intention was that councils advancing proposals should be required to demonstrate at stage 1 that that criterion had been satisfied, in the sense that the proposal had at that point a broad cross-section of support from the three classes in question. He said that if that was right it is evident that the Secretary of State failed to apply that criterion, since in both the letters of 27 March and 25 July Mr. Rowsell makes clear that the assessment made by her is of the "likelihood" that the support criterion would be satisfied if the proposal were implemented rather than of whether it is satisfied as at the dates in question: he contended that such "prospective satisfaction" is not enough. He also submitted that if the Secretary of State had asked herself the right question at stage 1 the only view which she could rationally have formed, in the case of each of the proposals, is that the criterion was not satisfied. The material before the Secretary of State at that point as regards the Cheshire proposals was wholly inadequate to found a conclusion that the proposal had support from any of the specified classes. As regards Shropshire, he accepted that the view could reasonably have been held that the proposals had support from "key partners" and "stakeholders", but that was not the case as regards support from "service users/citizens", where the only real evidence available to the Secretary of State was that of the poll results from Shrewsbury, South Shropshire and Bridgnorth.
35. I do not accept Mr. Arden's contention that the Secretary of State was precluded from proceeding beyond stage 1 unless she judged that support from all three classes had been demonstrated at that stage. I do not read sections 3 and 5 of Invitations as justifying any such expectation. Section 3 sets out the criteria to which proposals must conform. Nothing is said about the stage at which they should so conform. In fact, the nature of some of the criteria at least is such that even at the moment of implementation they are necessarily "prospective". For example, what the Secretary of State has to assess is whether any given proposal will, if implemented, provide effective strategic leadership or deliver genuine opportunities for neighbourhood empowerment: they cannot actually begin to do so until after implementation. I accept that the support criterion does not logically fall into the same category as those, since it is in principle possible to ask whether the proposal has the necessary support at a given point of time prior to implementation; nevertheless, it is legitimate to interpret it in the same way as the other criteria, i.e. as concerned with the eventual position following implementation. And even if that were not so, I see no warrant for freezing the moment of assessment at stage 1 rather than treating it as being required at the date at which, following enactment of the Bill, the Secretary of State has to make the final decision to proceed to implementation. Public opinion is not necessarily static, and the natural point for the Secretary of State to have to consider whether the step she was minded to take had the necessary support was the moment at which she had finally to decide whether to act.
36. It is true that para. 5.4 of Invitations says that at stage 1 proposals "will be assessed against the criteria in section 3" and that para. 5.8 says that only proposals which in the Government's opinion meet those criteria "will proceed to stage 2". But it is not necessary to read the phrase "meet the criteria" as involving an assessment rigidly confined to what has been demonstrated as at that date. I see no reason why it should not permit an assessment which takes into account, so far as the Secretary of State judges appropriate, the prospects of the criteria being demonstrated to be met at a later stage, when there may have been movements in public support and when in any event further information may be available. It would be meaningless formalism for the Secretary of State to be obliged to make a definitive decision at an earlier date if she believed there was a good prospect that she would be in a better position to judge in due course. It is important not to treat a document of this character like a statute. It is a working document, and it should be interpreted so far as possible so as to permit a degree of flexibility as regards matters of process. Of course if the document were positively misleading in a way which caused prejudice to authorities or others acting in reliance on it, that might be another matter; but Mr. Arden could not point to any prejudice to his clients (beyond the fact that it left open the route to an outcome to which they were opposed) in the Secretary of State assessing at stage 1 only the "likelihood" of the criteria being met. For that reason I would also if necessary have held that even if Invitations were to be construed as saying that a definitive assessment would be made at stage 1, it remained open to the Secretary of State to change her mind and defer the assessment to stage 3.
37. Once that point is reached, the various points which were argued before me about the conclusions that could properly be drawn from the information identified in paras. 32 and 33 above fall away. As I understand Mr. Arden's submissions, it was not his case that, if the Secretary of State was entitled to ask herself the question that she did – i.e. the "likelihood" question - she could not reasonably have come to the conclusion that she did. But in case I have misunderstood him, I should say that the material available to her was in my judgment sufficient to allow her to reach the conclusions about the support criterion which are set out in the letters of 25 July. As regards Shropshire, it could no doubt be strongly argued that the three district council polls pointed clearly towards the conclusion that most "service users/citizens" did not support the proposals. But the Secretary of State was entitled not to regard them as definitive of the issue, not only because of the reservations noted by Professors Rallings and Thrasher but also because they did not cover the whole county and because the criterion does not on any view require majority support to be shown from all or any of the three specified classes. She was also entitled to take into account the Ipsos MORI view that public opinion was volatile and liable to be swayed as fuller information was made available and the case for the proposal was more strongly made. As regards Cheshire, the information on either side was much less solid but she was entitled to give weight to the view expressed by both Cheshire and Chester as to the state of public opinion. In truth, the support criterion is so soft-edged in its formulation that very strong evidence of lack of support would be necessary before a Court could hold that a conclusion that it was satisfied was irrational.

GROUND (3): THE DEPARTMENT'S WEB-PAGE

38. In March 2007 the Department for Communities and Local Government published on its website (as well as in hard copy) a consultation paper for the purpose of stage 2. It included links to the proposals which were the subject of the consultation, as published by the proposing authorities, including Shropshire, Cheshire and Chester. It did not, despite requests to do so, include links to the sites of authorities or any other persons opposed to the proposals. Mr. Arden submitted that this refusal vitiated the effectiveness of the consultation process carried out by the Secretary of State. I can see nothing in this point. Mr. Eadie explained that the view taken by the Department was that it made sense to provide a link to the proposals themselves since they were the subject-matter of the consultation but that it was both burdensome and unnecessary to provide links to comments posted by other persons or authorities. There were of course a large number of proposals being consulted about, and a very large number of authorities and other bodies would have relevant views. It would not be in the least difficult for any interested person to access the websites of district councils within the relevant counties. That seems to me an entirely reasonable position. Even if it could be criticised as ungenerous, the omission could not possibly be regarded as a sufficiently substantial failing to justify treating the consultation as inadequate or the resulting decisions as unlawful.

CONCLUSION

39. I accordingly dismiss both applications for judicial review. If I had reached a different view on the lawfulness of the decisions under challenge I should have had to consider a submission made by Mr. McManus that I should refuse relief as a matter of discretion. I do not propose to express a view on that submission, not least because, although Mr. McManus did not rely only on the question of the effect of cl. 21 of the Bill (if enacted), I find it hard to consider the other matters on which he relied in isolation from that point; and, for the reasons given at para. 29 above, that is ground on which I do not believe I should tread unless strictly necessary

Note 1    South Shropshire has since withdrawn its support.    [Back]

Note 2    In the report cited to me the paragraphs are unnumbered, but for ease of reference I have taken the numbering from the report at [2000] 1 FCR 471.    [Back]

Note 3    The Crown itself is a corporation. So are most (though apparently not all) Secretaries of State, including the Secretary of State for Communities and Local Government, by virtue of orders made under s. 2 (1) of the Ministers of the Crown Act 1975 constituting them as corporations sole. But it appears to be the corporate personality of the Crown that matters for present purposes.    [Back]

Note 4    It may be instructive to note that although the privatisation programmes of the 1980s and 1990s were generally thought to require the introduction of legislation in order to empower the target nationalised industries to co-operate in their own dissolution – see, e.g., s. 1 of the Public Utility Transfers and Water Charges Act 1988 – the statutes in question did not purport to confer any powers on the Secretary of State. The Crown was clearly understood – correctly, as I believe – to enjoy the necessary powers already.    [Back]