02 November 2007
District councils are devastated and lawyers shocked. Last month a judge found that the secretary of state could press on with plans for unitary authorities before her powers to do so had become law
Various district councils last month lost their legal challenge against the government's decision to rush ahead with plans for new unitary authorities. The challenge, made by way of judicial review, was led by Shrewsbury & Atcham and Congleton borough councils ('Jumping the gun', Point of Law, August 31—September 6).
Both of these face abolition as a result of bids for unitary status by other councils: Shrewsbury if the Shropshire County Council proposal is implemented and Congleton if either of two alternative proposals by Cheshire County Council and Chester City Council is put into effect. Other district councils joined in the action as they, too, would be significantly affected by the proposals.
The councils' challenge was on three grounds, of which the first was most significant and the other two procedural. Under the first, they argued that the secretary of state had no power to invite local authorities to submit their proposals for reorganisation because those powers were contained in the Local Government and Public Involvement in Health Bill, currently before Parliament and not yet law.
Local government secretary Hazel Blears argued that she had the power to act outside Parliament. Any minister could take steps of a 'governmental' character without parliamentary power because the government was a legal person and therefore had a range of powers, not all of which were statutory in nature. It could therefore undertake actions outside of those expressly granted by Parliament, provided these actions did not infringe any recognisable right or liberty of subjects of the Crown.
The second ground of challenge was that the secretary of state had failed to follow the criteria that she herself had laid down in advance, in particular that she had not ensured that the proposals were generally supported. The third ground was that she had acted unfairly in putting online links to councils that supported the proposals on the Department for Communities and Local Government website, but not to those that opposed them.
The case came before Underhill J in the Administrative Court on October 10 and his judgment was published the following week. He held that the government had acted lawfully.
On the first ground, the court accepted the secretary of state's contention that she had a Common Law power to act, akin to the powers of a natural person, and that this permitted her to do anything that was not specifically prohibited by the law. In other words, the government/Crown had a special power outside of those given by Parliament, and this authorised her conduct of the reorganisation process.
Although the judge was not willing to say that this non-statutory power was unlimited, he nevertheless considered it to be wide-ranging. In particular, there was an implied power to undertake a range of preparatory actions before the detailed legal framework was put in place. Once the necessary Act of Parliament was in place, the minister would then have to act in accordance with those powers.
One of the main contentions by the local authorities was that, to all intents and purposes, the secretary of state was not undertaking preparatory work but was making the final decisions on the matter, before having the proper legislative authority to so do.
The court rejected this argument and the second ground, namely that the secretary of state had failed to comply with her own criteria. It was permissible for her to progress a proposal through the stages that had been set out on the basis that the proposals would meet the criteria at some future date, as opposed to meeting the criteria at the time when the decisions were taken.
Finally, it determined that the decisions were not unfair, due to the refusal of the DCLG to provide links to council websites opposing the proposals.
The judgement will be viewed with concern by local government lawyers across the country as having set a dangerous precedent. Many commentators will feel that the authorities had the better of the arguments and be concerned by the way the court swept aside the claims that the minister went beyond preparatory work.
However, the judgment can also be seen in another light. If, as it seems, the government does not need parliamentary power to act but can engage in a wide variety of actions in certain circumstances, then perhaps similar powers will be implied to the benefit of local government. This would be particularly attractive to councils in the light of the ultra vires regime and constant reminders to act within tightly constrained statutory powers.
Either way, it seems certain that the decision will be appealed against, and so we will then see whether the Court of Appeal will decide to follow this highly debatable line.
Stephen Cirell is head of local government and Professor John Bennett is a consultant solicitor with Eversheds. They are authors of Best Value Law and Practice, published by Sweet and Maxwell
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