Windsor and Maidenhead, R (on the application of) v Dewar & Ors

The ThamesValleyPolice Authority (the Authority) covers an area which falls within nine local authorities – Buckinghamshire County Council, Oxfordshire County Council, Milton Keynes Council, Bracknell Forest Borough Council, Reading Borough Council, Slough Borough Council, West Berkshire District Council, Wokingham District Council and the Royal Borough of Windsor and Maidenhead. The Authority has 19 members, which figure is fixed pursuant to statutory instrument. The membership comprises three elements, namely council representatives, independents and representatives of the magistracy in the area (Police Act 1996, section 4 and Schedule 2 and 3). By Schedule 2, paragraph 1(2), the council representatives must amount to 50 per cent plus 1 of the membership, that is 10 out of 19. They are appointed by a Joint Committee consisting of persons appointed by the relevant councils from among their own members (Schedule 2, paragraph 2(2)). The membership of the Joint Committee is a matter for agreement between the councils or, in the absence of such agreement, determination by the Secretary of State (Schedule 2, paragraph 3). In the present case the Joint Committee has an agreed membership of twelve – 3 from Oxfordshire, 2 from Buckinghamshire and one from each of the 7 unitary authorities.

The crucial statutory provision is paragraph 4(1)(b) of Schedule 2. It provides:

“A…..joint committee shall exercise its power to appoint members of a police authority under paragraph 2 so as to ensure that, so far as practicable, the members for whose appointment it is responsible reflect –

…….the balance of parties for the time being prevailing among the members of the relevant councils taken as a whole.”

Oxfordshire and Buckinghamshire have substantially bigger populations than the unitary authorities. The population of Oxfordshire is about 600,000 and that of Buckinghamshire almost 470,000. The most populous of the unitary authorities is Milton Keynes (about 200,000). The smaller authorities have populations ranging from 107,000 to 142,000.

At all material times the 10 Council members of the Authority have comprised 4 Conservatives, 3 Labour and 3 Liberal Democrats. Prior to the local elections of May 2000, the representative of the Royal Borough on the Authority was a Liberal Democrat, Mr. Hedley, but he lost his seat in those elections. As a result he automatically ceased to be a member of the Authority (Schedule 2, paragraph 18(1)). At the same time, the Conservatives gained control of the Royal Borough. On 16 May 2000 the Joint Committee invited the Royal Borough to nominate another Liberal Democrat councillor to replace Mr. Hedley. However, the Royal Borough responded by nominating a Conservative. The Joint Committee refused to appoint that nominee, repeated the invitation to nominate a Liberal Democrat and stated that, if the Royal Borough did not nominate a Liberal Democrat, Buckinghamshire County Council would be invited to nominate one of its own Liberal Democrat councillors to fill the vacancy.

On 21 June 2000 there was a telephone conversation between Mr. Lawrence, the leader of the Royal Borough Council, and Mr. Page, the chairman of the Joint Committee, as a result of which the Royal Borough agreed to nominate a Liberal Democrat. Mr. Scott was duly nominated and appointed. On 22 June, Mr. Page wrote to Mr. Lawrence in the following terms:

“Colleagues on the Police Authority Joint Committee, which I chair, are most grateful to the Royal Borough for agreeing to nominate a Liberal Democrat councillor to the Police Authority.

We fully appreciate and understand the wish of your new administration to be represented directly on the Police Authority and we are most grateful to you personally for the part you have played in achieving a resolution which is of advantage to your Berkshire Unitary Authority colleagues.

You rightly identify that the allocation of seats on the Police Authority falls to be reconsidered in two years time. As Chair of the Joint Committee, I am certainly willing to agree to do all I can to persuade colleagues that due recognition should be given to the Royal Borough’s action on this occasion. Certainly, should we not be able to accommodate all authorities’ preferences within the political balance constraints, an authority other than the Royal Borough will be invited to accept the difficult, and probably unwelcome, task of nominating a member other than from this administration on that occasion.”

On 31 March 2002 the term of office of all the councillor members of the Authority expired. The Joint Committee deferred making new appointments until after the May 2002 elections. In correspondence, the Royal Borough sought and received confirmation that the Joint Committee would act in accordance with the letter of 22 June 2000.

On 9 May 2002, the Royal Borough nominated a Conservative, Mr. Hilton. The Joint Committee met on 10 May. It decided not to change the allocation of places between the relevant councils. It again invited the Royal Borough to nominate a Liberal Democrat, failing which the Joint Committee would invite Buckinghamshire County Council to nominate one of its Liberal Democrats. Contentious correspondence ensued. On 12 August the Royal Borough commenced the present proceedings. Soon after, it nominated Mr. Scott again (and without prejudice) and he was duly reappointed by the Joint Committee.

In the present proceedings, the Royal Borough is seeking judicial review of the refusal of the Joint Committee to appoint the Conservative nominee, Mr. Hilton, at the meeting on 10 May. Two grounds of challenge are advanced: (1) legitimate expectation, based on the letter of 22 June 2000; and (2) irrationality.

Legitimate expectation.

The type of legitimate expectation upon which the Royal Borough seeks to rely is substantive and not merely procedural. It is the type embraced by the third category referred to by Lord Woolf MR in Regina v. North and East Devon Health Authority, ex parte Coughlan [2001] QB 213, para 57:

“Where the court considers that a lawful promise or practice has induced a legitimate expectation of a benefit which is substantive, not simply procedural, authority now establishes that here too the court will in a proper case decide whether to frustrate the expectation is so unfair that to take a new and different course will amount to an abuse of power. Here, once the legitimacy of the expectation is established, the court will have the task of weighing the requirements of fairness against any overriding interest relied upon for the change of policy.”

It is axiomatic that the “promise or practice” must be “a clear and unambiguous representation upon which it was reasonable to rely” (Simon Brown LJ in Regina v. Devon County Council, ex parte Baker [1995] 1 All ER 73,88)

On behalf of the Royal Borough, Mr. Kovats submits that Mr. Page’s letter of 22 June 2000 contained two commitments. The sentence beginning “As Chair of the Joint Committee…..”was a personal commitment by Mr. Page. However, what came before and after it was a representation made by Mr. Page on behalf of the Joint Committee. It was clear and unambiguous; it was reasonable for the Royal Borough to rely upon it; and rely upon it it did, by appointing a Liberal Democrat. As a result, it had a legitimate expectation that it would be able to appoint a Conservative in 2002 and that any consequential adjustment would fall elsewhere. There was no overriding reason why that legitimate expectation should not have been honoured in 2002.

The case for the Joint Committee is that (1) Mr. Page’s letter did not amount to a representation by or on behalf of the Joint Committee; (2) Mr. Page had no authority to commit the Joint Committee; (3) in any event, it was not reasonable for the Royal Borough, a public authority, to rely on a statement by one politician to another about a hypothetical situation which might or might not arise following elections two years later; (4) Mr. Page had complied with his personal undertaking “to do all I can”; (5) although the letter of 22 June 2000 referred to “an authority other than the Royal Borough” being invited to nominate a minority councillor, in fact it would have been necessary for two authorities to make concessions for the Royal Borough to be accommodated; (6) if, contrary to Mr. Pickles’ primary submissions, there was a legitimate expectation, it was not breached because an overriding public interest trumped it.

The evidence of the discussion Mr. Lawrence and Mr. Page which preceded the letter is minimal. Everything therefore turns on the letter. It raises a number of questions. First, does it contain a clear and unambiguous representation to the effect that, if the Royal Borough were to nominate a minority Liberal Democrat in 2000, the Joint Committee would appoint a majority Conservative to represent it in 2002? In my judgment, it does not. The personal commitment of Mr. Page to do all he could to bring that about implies that it was not yet a matter of certainty. Moreover, it is difficult to see how it could have been. The very next sentence in the letter makes it clear that no other authority had yet been persuaded to cooperate to bring about this result. Secondly, there is the question whether Mr. Page had the authority to bind the Joint Committee. There is no evidence that he had its express authority or that the Joint Committee had clothed him with ostensible authority in the sense in which that concept is used in private law. When I raised this issue with Mr. Kovats his brief answer was to the effect that that is not necessary to support a legitimate expectation in public law and he referred obliquely to the line of authority of which Robertson v. Minister of Pensions [1949] 1 KB 227 was the progenitor. However, the matter is not quite that simple, as is apparent from the passage in de Smith, Woolf and Jowell, Judicial Review of Administrative Action, 5^th edn, pp 566-569. This, in turn, is connected with the third question: was it reasonable of the Royal Borough to rely on the letter as a source of legal entitlement? In my judgment it was not. I reach this conclusion not only on the basis of its failing to satisfy the “clear and unambiguous” test, but also because I do not consider it reasonable for a public authority to assume without more that a member, albeit the Chairman, of another public authority with which it is connected is in a position to obligate that other public authority in circumstances such as those prevailing in this case. Generally, cases in which legitimate expectation is successfully relied upon involve a representation to a member of the public or a private interest. Even then, the question arises whether the representee knows or ought to have known that the person making the representation had no power to bind the authority (see Matrix Securities Ltd v. Inland Revenue Commissioners [1994] 1 WLR 334). Assuming that, in principle, one public authority may be able to raise legitimate expectation against another (and, in the absence of fuller submissions, I leave that as an assumption), it is more difficult for a public authority to resist the suggestion that it ought to have known that the person making the representation had no power to bind his principal. I do not consider that the Royal Borough can resist it here. For all these reasons, the case based on legitimate expectation fails.

Irrationality

At its meeting on 10 May 2002 the Joint Committee had before it a report from its Secretary. It stated that there was no change to the proportional distribution of seats between the political parties as a consequence of the recent elections. It then described how the wishes of the Royal Borough could be accommodated by a redistribution. The only way to achieve this end would be to reallocate a Conservative seat from Oxfordshire to the Royal Borough, a Labour seat from Milton Keynes to Oxfordshire and a Liberal Democrat seat from the Royal Borough to Milton Keynes. The report observed:

“It could be argued…..that this would result in a more equitable distribution than at present, as it more accurately reflects the current political distribution of seats within each authority.”

It is apparent from the minutes of the meeting that a significant number of those present emphasised the importance of continuity in the membership of the authority. The representative of the Royal Borough clearly put the case for change based on “a more equitable distribution”. However, the Joint Committee, by a majority, resolved that no change should be made to the allocation of seats between the councils and, as a result, it invited the Royal Borough to nominate a Liberal Democrat, with the consequences to which I referred earlier.

Mr. Kovats submits that this decision was irrational because (1) the Joint Committee failed to take into account (a) the agreement that had been reached between Mr. Lawrence and Mr. Page in June 2000, as evidenced by letter of 22 June and (b) the need for a councillor member of the Authority to represent the views of the council in his area; (2) reliance or excessive reliance was placed on continuity in circumstances wherein (a) the Committee was content for the Royal Borough to be represented by any Liberal Democrat councillor, not necessarily Mr. Scott, and (b) the impact on continuity would be limited because only three of the ten councillor places would be affected.

In my judgment it cannot be said that the Joint Committee failed to take the Lawrence/Page arrangement into account. The minutes demonstrate that it was raised by Mrs. Bateson. Her recollection is that it was read out and Mr. Page described how, in advance of the meeting, he had “tried his hardest” to see if any of the councils was prepared to change, but without success. It was obvious that a Liberal Democrat would not come from the majority party in the Royal Borough. However, there is no legal requirement that he should. The statutory requirement is that the councillor members of the Authority should, so far as practicable, reflect “the balance of parties for the time being prevailing among the members of the relevant councils taken as a whole”. In other words the emphasis is on balance in relation to the area of the Authority as a whole. This is understandable when, by statute, the Secretary of State, having refused to increase the size of the Authority beyond 19 members, 10 councillor places have to be shared between nine councils, some of which are much bigger than others.

What, then, of the “continuity” point? It is certainly something which concerned several members of the Joint Committee. I do not consider that it was inherently irrational for them to have regard to it. The weight to be accorded to it was a matter for the Joint Committee, provided that it remained mindful of the requirement of paragraph 4(1)(b). I can find no basis for concluding that it did not. Whilst it is true that the resolution did not specify Mr. Scott, it would have been a matter for complaint if it had because it was not for the Joint Committee to remove all power of nomination from the Royal Borough. The resolution left at least a prospect of continuity. On the other hand, whilst the allocation of a Conservative in respect of the Royal Borough would only affect two other councils by way of redistribution, it would involve a total of three incidents of discontinuity.

I am bound to say that I have considerable sympathy with the Royal Borough. That sympathy would intensify if the present arrangement were to take on an appearance of permanence, as Mr. Kovats suggests it might. However, there is no reason to assume that. The vicissitudes of the electoral system are not so predictable and, in any event, the present arrangement is not set in stone. It may seem to operate unfairly on the Royal Borough at the moment but, if it does, it is not the consequence of irrationality.

If follows from what I have said that this application for judicial review fails.