Forest Heath District Council & Ors v The Electoral Commission & Ors

This case concerns the consideration currently being given to proposals to re-organise the structure of local government in Suffolk into a unitary (or single-tier) system.

At present there is a two-tier system comprising Suffolk County Council and seven District or Borough Councils - Babergh District Council, Forest Heath District Council, Ipswich Borough Council, Mid Suffolk District Council, St Edmundsbury Borough Council, Suffolk Coastal District Council and Waveney District Council.

As is generally the case throughout the country, under current arrangements the County Council provides services such as education, libraries, waste disposal, strategic planning functions, fire, adult social care, children’s services and trading standards for the whole of the county. Again, consistent with the general national pattern, the Borough and District Councils provide services such as housing, environmental health, local planning functions, leisure facilities, recycling, refuse collection and street cleaning.

Three of the seven District or Borough Councils are the Claimants in this application for judicial review, although two others are generally supportive of the approach they advocate for the future of local government in Suffolk. None contest the principle of a change to a unitary system although there is not complete unanimity in relation to the precise approach. However, the essential argument advanced in these proceedings is that the serious proposal (characterised for short as an ‘East/West/Ipswich split’) they have put forward in the review process currently taking place has not been considered, and is not being considered, fairly.

The “review process”, as I have characterised it in paragraph 4, is the statutory process in which, at this stage, the Boundary Committee of the Electoral Commission (‘the Boundary Committee’) is formulating advice to the Secretary of State for Communities and Local Government on the appropriate unitary pattern for Suffolk following a request from the Secretary of State to do so pursuant to section 4 of the Local Government and Public Involvement in Health Act 2007. I will say more about this process in paragraphs 20-23 below.

The date for the provision of that advice in its final form had originally been set by the Secretary of State as 31 December 2008, but that was extended to 13 February 2009. As things stand, and in the light of a further extension (granted in the circumstances referred to in paragraphs 74-75 below), the Committee’s advice is now due on or before 15 July 2009. These proceedings have been brought before the Court in expedited fashion following the grant of permission to the Claimants to apply for judicial review by HH Judge Anthony Thornton QC on 11 June and, in the circumstances, it has been necessary to prepare this judgment with expedition. Inevitably, I have had to focus on the arguments that have seemed to me be the most compelling on each side.

In certain circumstances (to which I will refer in paragraph 20 below), before advice may be given to the Secretary of State in favour of a particular proposal for change, a draft of the proposal must be published by the Boundary Committee and a period for representations relating to it provided.

As will emerge in due course, on 7 July 2008 the Boundary Committee published a single Draft Proposal for Suffolk together with what was described as a further “pattern of merit” upon which views were sought by 26 September 2008. In circumstances to which I will also refer later, on 19 March 2009 the Boundary Committee published Further Draft Proposals (FDPs) for Suffolk which, subject to one matter, were the same as those published in July 2008. Representations were requested by 14 May 2009.

It is the publication of those Further Draft Proposals that is sought to be challenged in this application. It is argued in essence that a particular form of proposal advocated by the Claimants (and supported by others), characterised in the way described in paragraph 4 above, was unfairly excluded from the draft. The opportunity for proper consultation on that approach is thus denied.

The Boundary Committee (and indeed the Secretary of State as an interested party) has taken the point that the gist of the Claimants’ complaint relates to matters which have been available for challenge since the Committee published its Draft Proposal in July 2008 and, accordingly, the challenge is out of time. However, Mr Richard Gordon QC, for the Committee, and Mr Tim Buley, for the Secretary of State, have taken the position that they would not seek the dismissal of the application on that ground alone and would reserve the right to make any submissions about the relief to be granted if I was to accede to the general ground of challenge upon which the Claimants rely.

One point that is not taken is that the continued opportunity to make representations to the Secretary of State after the Committee’s advice is tendered (on the assumption that it is) is that any deficiencies or unfairness that might have occurred in the procedures to date could be cured by taking that opportunity. Mr Tim Buley, on behalf of the Secretary of State, has accepted that this would not afford an answer to the application if there had been unfairness in the procedures to date. He accepted that the Claimants would be prejudiced if that were found to be the case. Accordingly, it is accepted that I should judge this application on its merits as it presently stands without consideration being given to the possibility that any unfairness or lack of consultation might be remedied through the later stages of the statutory process.

It is of relevance to note that the review process relating to Suffolk has been running alongside and parallel with similar processes concerning Devon and Norfolk. I will explain briefly how that has arisen.

On 26 October 2006 the Government published a White Paper entitled ‘Strong and Prosperous Communities’ (Cmnd 6939-1) and, at the same time, the Secretary of State issued a document entitled ‘Invitation to Councils in England – to make proposals for future unitary structures [and] to pioneer, as pathfinders, new two-tier models.’ This invited principal local authorities in two-tier areas (in other words, where there were District/Borough and County Councils) in England (outside the areas of Greater London and the Metropolitan Counties) to submit proposals for a change to unitary status. The document specified five criteria with which any proposal must conform. It must:

(i)

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

(ii)

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

(iii)

provide strong, effective and accountable strategic leadership;

(iv)

deliver genuine opportunities for neighbourhood flexibility and empowerment; and

(v)

deliver value for money and equity on public services.

I will return to the relevance of those criteria to the present proceedings later, but for present purposes what needs to be noted is that there were 26 proposals submitted to the Secretary of State in response to the invitation of which 9 have been implemented. Included amongst those not implemented were proposals by Norwich City Council, Exeter City Council and Ipswich Borough Council. I should say that Ipswich Borough Council was the only council in Suffolk to make a proposal for a single unitary authority.

In respect of each of these proposals the Secretary of State concluded that there was not a reasonable likelihood that, if it was implemented, it would achieve “the outcomes specified by all the five criteria.” It was indicated that “at present [she was] not minded to implement the proposals.” However, it was stated “that there could be alternative proposals covering the whole or part of the wider county area which would achieve the outcomes specified by those criteria.” As a result, on 6 February 2008 the Secretary of State made a formal written request under section 4 of the 2007 Act to the Boundary Committee to advise in relation to each of these matters “by no later than 31 December 2008”. Because of their respective countywide implications they became known as the Devon, Norfolk and Suffolk Proposals.

The requests for advice were similar, though not identical, in each case. I will refer to those aspects that are of relevance to this case below. However, in response to the requests the Boundary Committee began a separate statutory process in respect of each of these proposals designed to enable the provision of advice by the stipulated date although, as I have said, they were effectively running in parallel.

The processes concerning the Devon and Norfolk Proposals have been subject to challenge by way of judicial review, both being dealt with by Cranston J at first instance: two District Councils and one Borough Council in Norfolk brought proceedings against the Boundary Committee that were heard on 13-14 November 2008, judgment being handed down on 28 November 2008 (see [2008] EWHC 2329 (Admin)) and East Devon District Council brought proceedings against the Committee which were heard on 19 December 2008, judgment being given on 8 January 2009 (see [2008] EWHC 4 (Admin)). Both cases were considered by the Court of Appeal on 18-20 February 2009 and judgment was handed down on 25 March 2009: see R (Breckland DC) and ors v The Boundary Committee [2009] EWCA Civ 239.

Leaving to one side for present purposes any influence that, in particular, the decision of the Court of Appeal may have on the substantive decision in the present case, the chronology of, and the decisions in, the foregoing cases have provided an important backdrop to what has occurred in this case. Since the court (including the Court of Appeal) has taken a different view in a number of areas from the view hitherto taken by the Boundary Committee about its powers and approach, the Committee has had to re-adjust its focus at various times in relation to the three particular cases under consideration by virtue of the Secretary of State’s request for advice referred to in paragraph 14.

The extent to which, if at all, the Breckland case impacts on the matters in issue in this case remains to be considered. However, irrespective of the conclusions to be reached in respect of that, it is difficult to resist the inference that the Boundary Committee has been forced, by virtue of the decisions of the court, to play a game of “catch-up” in endeavouring to adhere to the timetable set by the Secretary of State. The extensions of time referred to in paragraph 6 have largely been driven by the need to accommodate the forced changes of focus to which I have referred.

Having set out the general scene, I should set out the statutory framework for the process under challenge. Because it has so recently been considered by the Court of Appeal I respectfully adopt with gratitude the analysis of the relevant provisions given by the Court (Sir Anthony May, PQBD, Dyson and Richards LJJ) as follows:

“5.

Chapter 1 of Part 1 of the 2007 Act enacts a structure which enables, but does not require, the Secretary of State to effect changes from two tiers to a single tier of local government. Section 2 of the Act enables the Secretary of State to invite or (before 25 January 2008) to direct a County Council or a District Council in England to make a number of types of proposal for a change to a single tier of local government. Section 3(5) provides that, in responding to an invitation or complying with a direction, an authority must have regard to guidance from the Secretary of State as to what the proposal should seek to achieve and matters that should be taken into account in formulating a proposal. Having received a proposal in response to an invitation or direction, one of the statutory options available to the Secretary of State under section 7(1)(a) is to implement the proposal by Order with or without modification. But the Secretary of State may not do this unless she has consulted every authority affected by the proposal (other than those who made the proposal) and “such other persons as [she] considers appropriate” – section 7(3). ”

6.

Another course open to the Secretary of State upon receiving a proposal is to request the Boundary Committee to advise:

“… on any matter that (a) relates to the proposal; and (b) is specified in the request” – section 4(2).

The Boundary Committee are to advise no later than a date specified in the request, but the Secretary of State can at any time substitute a later date – section 4(3). Thus, the first place to look for what the Boundary Committee are requested and, subject to an apparent discretion, expected to do, is the Secretary of State’s request.

7.

Upon receipt of the Secretary of State’s request for advice, the Boundary Committee have a discretion to provide the requested advice – section 5(2). They may also recommend that the Secretary of State either does or does not implement the original proposal without modification, or they may make “an alternative proposal” – section 5(3). The meaning of “an alternative proposal” is given in section 5(5). If they do make an alternative proposal, it has to be a proposal for one or more single tiers of local government. If it were a proposal for two or more single tiers of local government, they cannot be alternatives to one another – section 5(5)(b). We understand this to mean that the Boundary Committee cannot make a proposal for two or more unitary authorities as alternative to each other; but they can make a proposal for two or more unitary authorities operating beside each other.

8.

The procedure to be followed by the Boundary Committee is given in section 6. They may request a local authority to provide them with relevant information within a specified time – section 6(1). They have to have regard to guidance from the Secretary of State – section 6(2). They have to make any recommendation or alternative proposal by the date specified by the Secretary of State in her request which may be extended – section 6(3) and 6(7), referring back to section 4(2) and (3). Section 6(4) and (5), which are central to these appeals provide:

‘(4) Before making an alternative proposal under section 5(3)(c) the Boundary Committee must –

publish a draft of the proposal; and

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, and

(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.’

The relevant period in section 6(5)(b)(ii) is four weeks from the date specified by the Secretary of State for the Boundary Committee to advise.

9.

The Secretary of State’s implementation powers are in section 7. We have already indicated that she has power to implement an original proposal with or without modification without the intervention of the Boundary Committee. If she has asked for their advice and receives an alternative proposal from them, she may implement that alternative proposal with or without modification. She may also decide to take no action.”

As will be apparent already, the application for judicial review in the present case relates to the period between the receipt by the Boundary Committee of the Secretary of State’s request for advice section 4(2) and the publication by the Committee of a draft proposal under section 6(4). The period specifically under review in the Breckland case was the period after publication of the draft proposal it has in mind recommending to the Secretary of State. In a nutshell the Court of Appeal held that “the statute obliges the Boundary Committee to carry out a process of public consultation” … “and, in accordance with paragraph 108 of [R v North & East Devon HA, ex p Coughlan [2001] QB 213] that consultation must be carried out properly” (paragraph 43). The period under the spotlight in the present case can be characterised as the ‘pre-consultation period’; the period under the spotlight in the other cases having been the ‘consultation period’ proper.

A further matter resolved by the Breckland case was the issue of whether more than one proposal could be published under section 6(4). At some stage prior to or during May 2008 the Boundary Committee had received legal advice to the effect that the 2007 Act generally prevented it from publishing more than one draft alternative proposal or from giving advice to the Secretary of State in favour of more than one alternative proposal. The Court of Appeal, upholding the decision of Cranston J, rejected that viewpoint. It was put thus at paragraph 80 of the judgment:

“All that [section 6(4)] says is that the Boundary Committee must publish a draft alternative proposal and receive representations on it before making that alternative proposal to the Secretary of State. There is nothing there to say that they cannot consult on more than one draft proposal. The Secretary of State cannot of course implement more than one alternative proposal, but the use of the words “that alternative proposal” in section 7(1)(b) does no more than recognise that necessity. They do not compel a conclusion that the Secretary of State cannot receive more than one alternative proposal.”

I will refer to such other conclusions of the Court of Appeal in relation to this overall statutory process when they arise for consideration. However, the period of approximately 4 months between 28 November 2008 (when Cranston J’s first judgment was handed down) and 25 March 2009 (when the Court of Appeal’s judgment was handed down) would undoubtedly have been a period of uncertainty for the Boundary Committee. On the one hand, it was endeavouring to carry on its work respecting and reflecting the decisions of the court and yet, on the other, was preparing to argue that those decisions were wrong. It was during this uncertain period that the decision the subject of the present challenge was either taken or confirmed depending on which view of the facts is taken.

As indicated above, Ipswich Borough Council submitted a proposal for a unitary authority for Ipswich in response to the Secretary of State’s invitation (see paragraph 13 above). When the request for advice (see paragraph 15) was drafted, the part relating to Suffolk was in the following terms:

“The matters on which the Boundary Committee is requested to advise in relation to the unitary proposal from Ipswich Borough Council are:

a)

whether there could be an alternative proposal for a single tier of local government, and if so on what basis, for Ipswich and the whole or part of the surrounding Suffolk county area, which in aggregate would 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 Ipswich and the whole or part of the surrounding Suffolk county area, together with the whole or part of the district of Great Yarmouth, 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 subparagraph 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 out in section 6(4) and (5) of the 2007 Act.”

Great Yarmouth was, of course, within the County of Norfolk. The ‘Annex A’ referred to contained essentially the same five criteria as in the invitation (see paragraph 13), but for completeness I set out the first paragraph here:

“Any unitary arrangements, if these were to be implemented, should be reasonably likely to deliver the following outcomes:

I. the change to the future local government structures is to be:

• affordable, ie 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 recognised in the Government’s Review of subnational economic development and regeneration;

• deliver genuine opportunities for neighbourhood flexibility and empowerment, in particular for empowering citizens and communities as envisaged in the Government’s Green Paper Governance of Britain and in the Government’s and the LGA’s An Action Plan for Community Empowerment: building on success;

• deliver value for money and equity on public services.”

Each of the intended outcomes is described in greater detail in the remainder of Annex A, but in view of an argument that has arisen (see paragraphs 35, 37, 38-39, 42, 49, 60-62, 65, 67, 79 and 93 below) I should set out the characteristics of the “Strategic leadership” requirement:

“Accordingly, a new unitary structure should provide strategic leadership that is characterised by:

i)

strong, stable mandates, consistent with enabling local authorities to take a long-term, strategic view of the needs of their area, and how best to promote that area’s prosperity, achieve economic development, and allow the taking of tough decisions where necessary;

ii)

an outward-orientation, consistent with a growing need to represent the community in discussions and debates with organisations and parts of government at local, regional and national level eg through LAAs;

iii)

clear and direct accountability, consistent with making powerful local leaders more responsive and responsible, and tackling disengagement and powerlessness by shortening the distance between governors and governed; and

iv)

leaders with personal visibility, consistent with the need to bring coherence to an increasingly complex landscape of local actors and partnerships.”

Part of the statutory process (see paragraph 20 above) enables the Secretary of State to give guidance to the Boundary Committee under section 6. This appeared in Annex B to the request and I think it would be helpful to set out some of the ‘Guidance from the Secretary of State’ in relation to the Suffolk proposals:

“5.

Whether to provide advice or make an alternative proposal to the Secretary of State, and if so what it should be, is a matter for the Boundary Committee. It is open to the Committee when providing the advice requested, if sees fit, to make under section 5(3)(c) an alternative proposal which has not been sought or referred to in the Secretary of State’s request for advice.

6.

The first stage in the procedures for making an alternative proposal set out in section 6(4) and (5) of the 2007 Act is for the Boundary Committee to formulate a draft alternative proposal. 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.

7.

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.

8.

The Committee’s formulation of any draft alternative proposal should not be a process limited to assessing and choosing proposals, or ideas, put forward by local authorities or other interested parties. Accordingly, whilst it is recognised that the local authorities concerned and others may have views on, ideas about, and seek to promote, particular unitary solutions, a draft alternative proposal made by the Committee may be, if the Committee believes this to be right, entirely different from anything that local authorities or other stakeholders have suggested or sought to promote.

9.

The procedure that the Committee is required to follow by section 6(4) and (5) of the 2007 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 by 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.

10.

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 judgements 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.

11.

In considering such associated arrangements the Committee should have regard to associated arrangements which have been, or are proposed to be, adopted in the case of other unitary structures which have, or are being implemented, as evidence about what associated arrangements might be possible. The Committee should also have regard to the circumstances of the area concerned which may provide further evidence about what associated arrangements would be likely to be adopted if the alternative unitary proposal were to be implemented.

12.

When responding to a request from the Secretary of State for advice and making an alternative proposal to her, the Committee may wish to provide details of its judgements and assessments of that alternative proposal and its reasoning for making it. Any such details and reasoning should provide information about any assumptions that the Committee has made about the associated arrangements referred to above.”

I will return to arguments addressed by reference to the terms of this guidance in due course (see paragraphs 90-95), but it should be noted that there is no challenge to the lawfulness of that guidance. The only caveat to that proposition is that if the guidance was thought to suggest that, in due course, only one draft alternative proposal could be published and recommended to the Secretary of State that would be wrong in the light of the Court of Appeal’s judgment in the Breckland case (see paragraph 21 above).

For completeness at this stage in the recitation of the history, it is clear that the issue of what might be described as “cross-border” reconstruction arose as a matter for consideration. This will be apparent from the reference to Great Yarmouth at paragraphs 23 and 24 above and it should be noted also that in the Secretary of State’s request for advice in relation to Norfolk, the Boundary Committee was asked to consider alternative proposals for the whole or part of Norfolk together with the whole or part of the district of Waveney which, of course, is presently part of Suffolk. Lowestoft is the main town in Waveney district.

On 15 February 2008 the Boundary Committee wrote to the local authorities affected by the Suffolk structural review and in February it held a series of meetings with the local authorities that were potentially affected by the process. According to the witness statement of Mr Archie Gall, the Director of the Committee, one of those meetings took place on 28 February 2008 attended by representatives of all local authorities in Suffolk and the members of the Committee. The presentation, which was assisted by some slides, emphasised, according to Mr Gall, that the Committee’s approach would involve considering possible options for unitary local government in Suffolk; that it was the Committee that would make the decision in relation to any alternative proposals that would be the subject of consultation and submitted to the Secretary of State; and that the information required would need to be identified by the Committee. The presentation further emphasised that, as had been outlined in the Secretary of State’s guidance, any alternative proposal that may be proposed to the Secretary of State by the Committee could differ from the concepts that had been identified by the local authorities. One of the slides dealing with the Committee’s approach indicated that it intended to be “open-minded, accessible and consultative”, a phrase that reflected what was said in an advice note entitled ‘Advice on structural reviews in Devon, Norfolk and Suffolk’ promulgated by the Committee (and placed on its website at the outset of the review process) that contained the following paragraph:

“Our intention is to work cooperatively and openly with local authorities, and have a dialogue with them and other stakeholders. Such an approach is essential if we are going to gather enough information to reach a decision on whether a particular pattern of unitary local government within a county area should be the basis of draft proposals which will be subject to public consultation.”

“Affordability” was not to be considered other than in a very general sense at this stage.

Stage 1 of the process (as it was called) took place between 3 March 2008 and 11 April 2008. It was essentially an information gathering exercise.

By 14 March 2008 the various local authorities in Suffolk had identified four general concepts for consideration by the Boundary Committee: (i) a single unitary Suffolk; (ii) an expanded Ipswich unitary plus a unitary based on the remainder; (iii) East and West unitary authorities; and (iv) East and West and expanded Ipswich unitary authorities. There was no support for the creation of a unitary authority embracing Waveney District Council and Great Yarmouth Borough Council (known as the ‘Yartoft’ proposal), one of the reasons given in the ‘Joint Statement from the Leaders of the Suffolk Local Authorities’ being the lack of “strategic leadership” that this could give. Since that issue has arisen in relation to the ‘East/West/Ipswich split’ proposal (see paragraphs 79 and 93 below), it is to be inferred that the Leaders saw the four general concepts referred to above as meeting that objective to a greater or lesser degree.

The Committee met representatives of Suffolk Coastal District Council on 18 March 2008 and gave an overview of the review process, including how the formulation of concepts was to be achieved. Notes apparently taken by a member of the District Council’s team record the “key points” from the overview given by the Chairman of the Boundary Committee (Mr Max Caller) and the subsequent discussion. These points included the need for evidence-based concepts, the importance of support from other local authorities and stakeholders, the application of the five criteria during the review, the proposition that the review was an iterative process and that the consultation process would continue after the end of Stage 1 until any options are published.

Without going into precise details for present purposes, by 11 April 2008 six of the District/Borough councils actively supported East/West unitary authorities (with or without an Ipswich unitary authority) and each of the three Claimant authorities had submitted either individual or joint proposals along those lines. Since the issue of “strategic leadership” is potentially of relevance to the outcome of this application, I should record that each of the submissions to which I have referred contained detailed arguments supporting the contention that the objective of strategic leadership as referred to in paragraphs 25 and 26 above would be met by adopting an East/West split. My task is not, of course, to evaluate the strengths or otherwise of those arguments; but on any analysis the arguments were clearly and cogently expressed and articulated with obvious conviction. The Forest Heath analysis contained the following two paragraphs at the beginning of the section of the submission on “strategic leadership”:

“East/West authorities provide an ideal size and structure for strong, effective and accountable leadership. The Concept ensures that the authority is not too large so as to remove any sense of community, but that it is of a scale and nature necessary to provide strong strategic leadership.

By utilising a Mayor or Leader and Cabinet model residents can be assured that their new authority is clearly and visibly accountable and focussed on establishing a sense of place and taking proper regard of local context.”

Stage 2 of the process involved consideration by the Committee of the concepts put forward during which time further information was requested. On 15^-16 April 2008 the Committee discussed the concepts and identified areas requiring clarification and on 22 April 2008 it sent questions to, amongst others, Forest Heath, St Edmundsbury, Suffolk Coastal and Waveney. The questions were in two sections, the first of which was the same for all proponents of particular concepts and addressed various areas including why the proposed model best addresses the social and economic challenges facing Suffolk, what the risks facing a unitary authority are with a large geographical area, how can these be met and whether there is support for a unitary Ipswich. The second section addressed matters with reference to the Secretary of State’s criteria (excluding affordability). Responses were to be sent by 9 May 2008, which was acknowledged to be a short period and which might affect the level of detail provided. The respondents were not asked to identify precise boundaries for any of the concepts.

In relation to the issue of “strategic leadership”, only two questions were asked and were as follows:

•

What would be the impact of your preferred model of unitary local government on key existing partners?

•

How do you envisage your economic relationship continuing with the Haven Gateway Partnership?

The ‘Haven Gateway Partnership’ is an association that brings together the Ports of Felixstowe, Harwich, Ipswich, Mistley and their surrounding hinterlands. It is, inevitably, centred on the East of the County.

On 9 May 2008, St Edmundsbury, Suffolk Coastal and Waveney and Forest Heath (plus others) responded to the Boundary Committee’s questions. Considered justifications for the East/West/Ipswich concept were advanced (beyond any historical split) and evidence presented of considerable support for such a solution. Each responded to the specific questions raised in some detail and each dealt with the question relating to “strategic leadership” from its own perspective. Of the local authorities concerned, the geographical location of Suffolk Coastal District Council and Waveney meant that they were more positive about the strengthening of the economic relationship with the Haven Gateway Partnership than were Forest Heath and St Edmundsbury, whose association was with the Great Cambridgeshire Partnership. The argument was advanced by at least one of the authorities that this reinforced the case for the East/West split.

Although the Minutes of relevant meetings during this period were not revealed until much later, the fact is that on 15 May the Boundary Committee was presented with a written report setting out the concepts received initially, their proponents and the responses to the questions that had been addressed. It reached initial views on its preferred draft proposals, namely, an enlarged Ipswich unitary authority and a further unitary authority for the remainder of Suffolk without Lowestoft and a unitary authority for the county without Lowestoft. It was recognised at this meeting that the Committee could recommend only one proposal. The formal Minutes were somewhat bland although the handwritten notes taken by someone do reveal substantial discussions. However, it is correct to say, as Mr James Findlay QC for the Claimants contends, that there is no reference anywhere to the suggestion that the East/West/Ipswich concept fell short of the criteria because it was likely to fail to provide strategic leadership in the East of the county (see, e.g., paragraphs 79 and 93 below). It is said on behalf of the Claimants (and not, as I understand it, seriously disputed) that there was no feedback of any sort after the date of that meeting and such information that has emerged subsequently has emerged only following Freedom of Information Act requests or as a result of a court order in these proceedings. Indeed it was the policy of the Committee not to meet individual local authorities during this period. A document dated 12 June 2008 evidencing the policy is in these terms:

“6.

We have already received representations from LA’s and individual parish or town councils seeking a meeting with the Boundary Committee to discuss the proposals.

7.

To agree to meet all of those seeking to meet on a one to one basis (we can say with some confidence that most affected LA’s will seek such meetings) would involve a significant time commitment. More importantly, there is little benefit to be derived in meeting on a one to one basis: we cannot change our draft proposals at such meetings and it does not represent an effective method of responding to the consultation.

8.

Conversely, to engage with some LA’s and not others is not recommended: we must act equitably.

9.

Our plan is to engage with local authorities in each county as a group. We will meet Chief Executive’s and Political Group Leaders of the affected authorities as a group, either under our own flag or under the auspices of the County LGA. Similarly, we are also meeting with parish and town council umbrella bodies.

10.

We should refuse meetings with individual local authorities because our role during consultation is explaining the proposals (rather than receiving responses) and we want to ensure absolutely equal access to information about the proposals between affected groups. We will, of course, encourage written responses to the consultation from all interested parties and each will be considered on their merits at that time.”

I will deal with the Committee’s general response to the relevance of the suggestion that there was no dialogue during this period at paragraph 90 below.

It is now known that a further meeting took place on 21 May when the Committee was presented with a paper recommending a draft proposal and second pattern of unitary government. The draft proposal was for two unitary authorities, namely, an enlarged Ipswich (which would require a new boundary to be created) and the remainder of Suffolk (both without Lowestoft) or for a unitary county comprising the whole of Suffolk but excluding Lowestoft. The East/West split was discussed and the following recorded about it:

“10.

The team acknowledged the strengths of this option (East / West / Ipswich) relate largely to community identity and an assertion that the east of the county has little in common with areas to the west. The team recognised that there is a common coastal interest for part of an east coast authority.^.

11.

However, the team felt that the boundary between east and west and the sphere of influence of each centre – Ipswich and Bury St. Edmunds is not entirely evident. For example it is unclear whether the Cambridge effect extended to areas such as Stowmarket. Conversely, it was felt that Ipswich included within East Suffolk would not command sufficient influence in the east and vice versa.

12.

The team also felt that the aspirations of Lowestoft would be best met if it featured in a new unitary authority which encompassed Great Yarmouth and extended all the way to Norwich. Consequently, this would impact on the viability of an East Suffolk unitary authority.

13.

As stated above, the team expressed concerns over where the boundary between east and west and the difficulty in determining where to draw the boundary line in a rural area. The additional concern of this model was that a unitary Ipswich (based on a number of varying boundaries) could potentially leave concerns over the capacity of a West and East Suffolk both delivering large scale and specialist services currently carried out by the County Council.”

Again, it is correct to say, as the Claimants contend, that there is no explicit reference to the “strategic leadership” matter referred to in paragraph 35 above. Equally, the full unredacted minutes of the meeting on 21 May 2008, revealed much later, contain no indication that the East/West split proposals failed to meet the Secretary of State’s criteria nor was any reason given they had been rejected, if they were.

Notwithstanding those observations, in a letter of response dated 24 April 2009 to the letter before action prior to the institution of these proceedings it is stated on the Committee’s behalf that “[the Committee] concluded prior to its publication of the draft alternative proposal in 2008 that the ‘East/West/Ipswich’ pattern did not have the capacity to meet the Secretary of State’s criteria …. The ‘East/West/Ipswich’ pattern’s inability to meet the Secretary of State’s criteria and its concomitant inability to be published as a draft alternative proposal (and not the Committee’s misapprehension as to the number of draft alternative proposals that it may have published) are the reasons why further representations were not sought upon it, and why workbooks for financial data were not published in respect of it.” I will return to this matter later (see paragraph 79 et seq).

The Draft Proposal published on 7 July 2008, which related to Norfolk and Suffolk, was said by the Boundary Committee to be “an Ipswich [and] Felixstowe unitary authority and a Suffolk unitary authority comprising the rest of the county apart from the Lowestoft area.” In announcing a 12-week consultation period the Committee said this:

“We have not finalised our proposals for unitary patterns of local government in Norfolk and Suffolk. In the light of representations received, we will review our draft proposals and consider whether they should be altered. It is therefore important that all interested parties let us have their views and evidence, whether or not they agree with our draft proposals.

We have also included in the report other patterns of unitary local government that we considered had merit, which people may wish to bear in mind when considering the draft proposals.”

The conclusion was expressed in this way:

“We consider that our draft proposal is likely to have the capacity to achieve the outcomes set out in the Secretary of State’s criteria. Nevertheless, we believe there is merit in a single unitary authority … comprising the whole of the existing Suffolk county, with the exception of the Lowestoft area.”

So far as the 12-week consultation period was concerned the Committee expressed itself thus:

“The Committee places great importance on ensuring openness and transparency in the way we deal with all representations.”

At the close of the consultation period it was said that “we will consider all the representations we have received and start to formulate our final advice, which we have been asked to submit to the Secretary of State by 31 December 2008.”

Since no East/West split concept was published, the inference of those reading the draft proposal would be that any such concept did not meet the five criteria (which, incidentally, was not said explicitly in the published proposal) or, if it did, it was not the best option given the perception at the time that only one proposal could be published. The way in which the issue was dealt with in the paper publishing the proposals was (a) to record all the concepts received for consideration (which, of course, included those advanced by the Claimants) and (b) to set out the reasons for adopting the proposals considered to have merit. The paper did not contain a point by point refutation of the alleged advantages of any proposal advanced by any party including those advanced by the Claimants.

It set out the advantages of the proposals put forward in these paragraphs, the “strategic leadership” issue being addressed in paragraph 6.25:

“6.22

We consider that the proposed unitary authority would provide a focus for the majority of the county which would reflect the historic identity of Suffolk and its contemporary social and economic relationships. At this stage we believe that the exclusion of Ipswich, Felixstowe and Lowestoft, would not adversely affect this focus. Rather, we envisage that the focus of this new authority would centre around its historic market towns and rural hinterlands.

6.23

We consider that the exclusion of Ipswich and Felixstowe is unlikely to have a significant adverse impact on the economy of the remainder of the county, which is primarily rural in nature. As part of a growth point area, an Ipswich and Felixstowe authority would continue to attract inward investment to the area, with commensurate benefits as a source for employment extending well beyond its proposed boundaries.

6.24

Unlike a number of locally-generated concepts seeking to restore the pre-1974 distinction between East and West Suffolk, our proposed Suffolk authority would not divide the central rural area of the county through the imposition of what might be perceived as an artificial boundary. Instead, such a unitary authority would be well placed to reflect the common interests of rural and market town communities across the majority of the county area.

6.25

We consider the proposed Suffolk authority would be likely to provide strong, effective and accountable strategic leadership to the majority of the county area. It would be able to take forward the role of the existing County Council in its current network of partnerships at county, regional and national level. We note that the proposed Suffolk authority would also be able to build on current achievement in this area; for example, the Audit Commission has noted in its assessment of current County Council performance that ‘partnership working is delivering some important cross-cutting outcomes’. However, we acknowledge that its boundaries would not necessarily be coterminous with those of important partners such as the police and the Primary Care Trust, at least initially. This may require careful management during the transition period.

6.26

One of the most important challenges facing the proposed county unitary authority would be to demonstrate that it was not too large to deliver empowerment to citizens and communities. We note that our proposed Suffolk unitary authority would cover a large geographical area. It would contain a variety of different communities with a total population of some 400,000 facing different challenges and having different opportunities for development.”

I should, perhaps, observe in passing that Mr David Burnip, the Chief Executive Officer of Forest Heath District Council, has asserted in his witness statement that the reference in paragraph 6.24 to “locally-generated concepts seeking to restore the pre-1974 distinction between East and West Suffolk” reflected a “fundamental misunderstanding on the part of the Boundary Committee of those concepts and their reasoned justification or that such justification was overlooked.”

At all events, that was the position as at 7 July 2008. On 17 July 2008 the Committee gave a short further presentation to the principal Suffolk authorities and indicated, in response to the question whether it was still viable for people to write in supporting any of the original concepts submitted, that the Committee would consider other patterns to the two contained in the report of 7 July provided these were backed with new evidence.

Against the background of that indication, in August 2008 an alliance was formed between Forest Heath, St Edmundsbury and Waveney (“the Three Councils”) to promote a pattern which adapted and improved upon the Boundary Committee’s draft proposal (i) by keeping the expanded Ipswich unitary authority but (ii) dividing the rural council into East (including Lowestoft) and West unitary authorities. Although differences existed on the location of the boundary of the expanded Ipswich authority, the three councils, in liaison with Suffolk Coastal District Council, took a common position on what they perceived to be the flaws in the process to date, the alternative proposals and the need to consult on a three unitary pattern.

In early September there were various (and, in some respects, confusing) communications about proposed meetings between the Committee and various local authorities. I do not think anything turns on that specifically for present purposes save that there did appear to be considerable uncertainty on the part of those considering and/or wishing to attend to know the basis upon which the meetings were to proceed.

On 5 September the Leaders of Forest Heath District Council, St Edmundsbury Borough Council and Waveney District Council wrote to Mr Caller in the following terms:

“On 17 July, you helpfully indicated that the Boundary Committee would consider other models for Unitary Councils in Suffolk to the two contained in your consultation document, provided these were backed by new evidence.

Forest Heath District Council, St Edmundsbury Borough Council and Wavenley District Council all accept that your proposal for a ‘North Haven’ Unitary Council, covering Ipswich and Felixstowe, makes considerable sense. However, we also believe that, by particularly retaining Lowestoft in Suffolk, as you now wish to consider, we can work with you to improve upon your preferred option of a ‘Rural’ Unitary Borough creating two separate Unitaries for the East and West of Suffolk, reflecting the very different challenges and community identities across the remainder of the whole of the County.

As such, our three councils have joined together (and are also talking to the other district councils in Suffolk) to promote and develop a joint proposal along these lines, and to provide you with the new evidence and innovative thinking you will need to consider our case afresh.

We wish to make an initial submission to you before your 26 September deadline and, therefore, would welcome and early discussion with you about your requirements for information in the light of your advice on 17 July.”

An e-mailed response on 9 September was in these terms:

“ … As you know the Committee has considered the concept of an East/West/Ipswich pattern of unitary authorities and has published in its report a draft proposal and another pattern that it considers has merit. The Committee is looking for further information on the questions that it has outlined in its report published on 7^th July. We will of course take all representations into account. We would be happy to discuss the issues you have raised as part of the meeting this Friday ....”

The reference to a meeting on Friday was a reference to a meeting proposed for 12 September. On the same day as the e-mail referred to in paragraph 55, the Boundary Committee sent another e-mail that contained the following paragraph:

“We appreciate that local authorities would like the opportunity for further discussions with the Committee. However, we wish to emphasise the Committee’s desire for positive and constructive discussions focusing on the draft proposal and the other pattern identified in the Committee’s report.”

In that same e-mail the Boundary Committee indicated that there would be two sessions on the “pattern of merit” and one on the Draft Proposal. The first meeting would be attended by Suffolk County Council and other “stakeholders” who supported the “pattern of merit” only. The second meeting was to be a meeting for all authorities about the “pattern of merit” and the third meeting in the afternoon for all authorities to discuss the Draft Proposal. With, as it seems to me, justification, those interested in the process would have been under the impression that the choice was between the two proposals in the July draft Proposal and nothing more.

However, it appears that Mr Caller reiterated at the meetings that the Committee was in ‘listening mode’ until well after 26 September and, accordingly, by letter that day the three Leaders wrote to him asking that the Committee should issue workbooks for the East/West/Ipswich concept containing similar financial information as provided for the Draft proposal and “pattern of merit” so that the three councils could demonstrate that their concept met the “affordability” criterion. The Leaders wanted to know the latest date by which the completed workbooks could be submitted for consideration by the Committee.

Mr Gall replied on Mr Caller’s behalf on 17 September in the following terms:

“As you are aware, the Committee has issued financial workbooks in relation to its draft proposal for Suffolk and the other pattern of unitary local government identified in its report …. The workbooks have been issued exclusively to obtain information relating to the Committee’s draft proposal and other pattern of merit. It is not necessary to issue the workbooks you have requested simply because the workbooks are not intended to be used in the way you propose.

The Committee will, of course, take into account all representations it receives in relation to its draft proposal. If, in light of those representations, it were minded to alter its draft proposal to a pattern of unitary local government quite different to that set out in its report, that is the point at which the Committee would consider the need to issue additional workbooks ….”

It should be noted that Mr Gall did not assert in that letter, as is now being asserted (see paragraph 43), that the East/West/Ipswich concept had already been rejected because it failed to meet the five criteria or that there was a perceived problem with the “strategic leadership” issue (see paragraph 65).

On 26 September 2008 the Three Councils submitted a joint proposal running to some 63 pages supporting East, West and Expanded Ipswich unitary authorities. It suggested that the Boundary Committee’s draft proposals for a unitary Expanded Ipswich were convincing, but that the remaining unitary authority could be improved upon significantly by the creation of separate unitary East and West councils for the remainder of Suffolk including Lowestoft. It included detailed submissions addressing the Secretary of State’s five criteria including work by the finance officers of the three councils to assess affordability in the same manner as the official workbooks. Some 11 pages of the 63 pages were devoted to the “strategic leadership” objective.

On the same day Suffolk Coastal District Council submitted a 20-page response (with additional evidence) supporting a proposal for an East, a West and an Ipswich unitary authority. The response addressed, amongst other matters, the “strategic leadership” issue. It also submitted a response to the Draft proposal and pattern of merit, indicating why, in its view, these patterns did not meet the Secretary of State’s five criteria.

The various responses to the consultation were collated by officials supporting the work of the Committee and made the subject of a report dated 3 October for a meeting of the Committee on 6 October. The report noted, amongst other matters, support for the East/West/Ipswich proposals. The Committee considered the Suffolk structural review at meetings on 28-29 October. Following those meetings an e-mail was sent to representatives of the Three Councils and, referring to the joint response the councils had sent, said that whilst “we have not asked you any questions on your concept at present it is possible that we may come back to you in due course.” It would, therefore, have seemed to the Three Councils that the concept was still under review.

Further meetings were held on 11-12 November 2008 and 19-20 November 2008. During this period of consideration the approach would have been on the basis that the Committee could put forward one draft proposal only: Cranston J’s judgment in the East Devon case was not handed down until 9 January 2009.

Following disclosure on 6 May 2009 of a report of a meeting on 18 February 2009, to which I will refer in more detail later (see paragraphs 78 and 79), it appears that when the East/West/Ipswich concept was further considered on 11 November 2008 “the Committee was not persuaded by the further evidence”. The report of the meeting on 18 February also records that “concerns were expressed” at the 11 November meeting over “strategic leadership” and “value for money”.

In fact when the (partially) unredacted Minutes of the meeting on 11 November 2008 were disclosed on 29 May 2009, it was revealed that the paragraph dealing with the conclusion in relation to East/West/Ipswich concepts was as follows:

“There was then some discussion of alternative proposals. The Committee again concluded that there was no new evidence of the viability of an East/West, or an East/West/Ipswich split, and that these patterns were unlikely to meet the five criteria even with the inclusion of Lowestoft. For example concerns were raised about the affordability of a three unitary pattern in Suffolk and the lack of stakeholders support for a three way split.”

If these Minutes are accurate, it would seem that the “strategic leadership” issue was not of such importance on 11 November 2008 that it required being recorded specifically.

On 19 November, the Boundary Committee had published a report on whether the affordability criteria were likely to be met in respect of the Draft proposal and the “pattern of merit” it had identified in July. On 20 November the Boundary Committee’s meeting took place. The Minutes merely record that “Other patterns in Suffolk were discussed briefly.” The following few lines were redacted and Mr Findlay submits that there is no unredacted record in the Minutes of the Committee considering the joint response of the Three Councils during this stage of the Boundary Committee’s review. That, I think, is undisputed.

Moving on through the chronology from mid-November 2008, on 28 November Cranston J gave judgment in the Breckland case. This was involved principally with the “affordability” criterion. The judgment in the case will undoubtedly have been studied with interest by all interested in the processes under way at the time.

I suspect it was this that generated the exchange of correspondence just before Christmas. On 17 December 2008 the Three Councils asked to meet with the Boundary Committee to discuss the three unitary proposal. The letter made it clear that they did not consider that they had been fairly treated and called for consultation on such proposal and again for financial workbooks. On the same date they wrote to the Secretary of State suggesting that the Boundary Committee’s process was fundamentally flawed: (i) there was no explanation for why some form of East/West/Ipswich spilt was not considered in the July report; (ii) there had been no subsequent explanation; (iii) there had been no meeting with its proponents to discuss the East/West/Expanded Ipswich proposal; (iv) there had been no consultation on public support for a three unitary structure. It was suggested that a sensible way forward would be for the Boundary Committee to request more time to advise so that it could undertake a full consultation on the East/West/Expanded Ipswich proposal. The letter requested the Secretary of State to instruct the Boundary Committee to examine fully and consult upon the option before it provided firm advice to her.

The Boundary Committee responded through Mr Gall on 22 December 2008 reiterating that it “is giving consideration to all representations received during Stage Three of the review”. The suggestion that it had not treated the concept put forward equitably was rejected. The letter contained this paragraph:

“The Committee made clear its approach to meeting local authorities during Stage Three and thereafter; we outlined from the publication of our draft proposal report that the Committee was committed to meeting those local authorities who wished to discuss the patterns outlined in the report. As you are aware, the Committee met representatives from [the Three Councils] during Stage Three, together with representatives from all other local authorities in Suffolk.”

The Claimants make the point that the letter omitted to mention that the meetings being referred to were limited to discussion of the Draft proposal and the “pattern of merit” (see paragraph 8 above).

At all events, in January 2009 the Three Councils commissioned research by Opinion Research Business (“ORB”) to determine the level of support for the various patterns under consideration including their proposal for three unitary authorities (East/West/Expanded Ipswich with Lowestoft). On 8 January 2009 Cranston J handed down judgment in the East Devon District Council case. On 9 January 2009 the Three Councils informed the Secretary of State of their view that the letter of 22 December from Mr Gall indicated an unwillingness on the part of the Committee to address the economic sense, financial viability and public popularity of the East/West/Expanded Ipswich option and that they would make further representations once the Boundary Committee had made its recommendations. On 14 January the Three Councils made clear to the Committee that it did not consider that the response to its concerns was in any way satisfactory and pointed out that they had had no opportunity to discuss their proposal with the Committee. On the same day the Three Councils plus Suffolk Coastal District Council sent a joint pre-action protocol letter to the Committee requesting confirmation that any action taken by the Committee, consequent upon Cranston J’s and/or the Court of Appeal’s judgment in due course would also applied to Suffolk. On 19 January 2009 the Electoral Commission confirmed that, whilst no decision had yet been taken, any adaptation of its process in response to court judgments would be applied to Suffolk.

There was a meeting of the Boundary Committee on 20 January. It agreed to continue with the review processes adhering to Cranston J’s direction pending the outcome of any appeal (which would seek to overturn the conclusion that more than one proposal may be published), but to ask the Secretary of State to extend the date by which she sought the Committee’s advice. The Committee also “agreed to analyse each pattern to assess which would be likely to meet the five criteria in aggregate” and then determine the details of consultation. On 23 January Mr Caller wrote to the Secretary of State requesting an extension of time by which to submit its advice. The letter contained these two sentences:

“Compliance requires the Committee to assess whether, on the basis of the evidence received to date, any of the patterns of merit discussed in its draft proposal reports, or any other proposals that have been drawn to its attention as a consequence of consultations, are likely to meet the five criteria. If there are any they will need to be subject to further consultation.”

In a letter of 12 February 2009 Mr Gall on behalf of the Committee wrote to the local authorities to indicate the way forward following the judgment of Cranston J in the East Devon case. The letter contained the following paragraph to which some considerable attention was paid during the argument before me:

“The Committee’s legal advisers have given the Committee the following advice in relation to Mr Justice Cranston’s judgment and its implications for the Committee’s process. In his judgment, Mr Justice Cranston declined to quash the Committee’s review process as the Claimant had asked. However, he suggested that the Committee had misdirected itself by believing it could consult on no more than one draft alternative proposal. He also suggested that the Committee’s approach to assessing proposals against the affordability criterion were flawed. The Committee’s legal advisers have advised the Committee that in order to rectify these flaws in its review process the Committee should consider whether there are proposals, other than the draft proposal already published, that it could potentially put to the Secretary of State as alternative proposals that meet in ‘in aggregate’ the criteria set out in the Secretary of State’s request for advice. The Committee should then go out to consultation on the proposals it identifies through this process.”

The letter indicated that the Committee had “not yet agreed what patterns … should form the basis of further draft proposals”, but indicated that it would publish any further draft proposals on 19 March 2009 and receive representations on those draft proposals until 14 May 2009 in order to be able to meet the requirement to give its advice by 15 July 2009.

On 16 February the three Leaders wrote to Mr Gall referring to his letter of 12 February, welcoming the decision to “press on with consultation on alternative proposals” and saying this:

“As you know, Waveney, Forest Heath and St Edmundsbury Councils maintain the view that a three unitary solution comprising Greater Ipswich, East Suffolk and West Suffolk best meets the Secretary of State’s criteria in aggregate. We very much hope that you will be issuing a workbook on this option.

We would also like to draw your attention to several key findings of recently published independent opinion research which found that:

1.

More than half the population of Suffolk is not aware that a review has been taking place (a finding, we believe, that should be of some concern to you)

2.

Nearly nine out of ten felt that the three unitary solution of Ipswich/East/West should be consulted upon by the Boundary Committee

3.

They support this option by a margin of more than 2:1 over any other option.”

As indicated above (paragraph 65), there was a meeting of the Committee on 18 February. The report to the Committee contained the following paragraphs dealing with the East/West/Ipswich concept:

“Synopsis

26.

During Stage One a three way split of the county was supported by Suffolk Coastal, Waveney, St Edmundsbury and Ipswich District Councils. Following publication of the draft proposals these authorities, with the exception of Suffolk Coastal (but including Forest Heath) agreed that there was merit in the Ipswich and Felixstowe UA published in our draft proposal and subsequently proposed to the Committee this three way split of the county. Suffolk Coastal supported a three way split but opposed the inclusion of Felixstowe in an Ipswich based authority.

27.

The Waveney, Forest Heath and St Edmundsbury joint submission agreed that there is merit in the creation of an Ipswich and Felixstowe UA, but that the rest of the county should be split into two, on the basis that this would provide clarity of vision and strategic leadership with regards to the issues facing each area of the county. The Committee considered a three unitary pattern at its meetings in May 2008 but considered that the evidence it had received was not enough to satisfy all five of the Secretary of State’s criteria, and the pattern was not included in a draft proposals report published in 7 July 2008. During the consultation period, the Committee received significant stakeholder support for this pattern accompanied by support from Parish and Town councils and residents. At its meeting on 11 November 2008, the Committee was not persuaded by the further evidence received in support of a three unitary pattern for the county. Although it was considered possible to achieve neighbourhood empowerment under this concept, concerns were expressed over how strategic leadership and value for money services could be offered across three unitary authorities.

…

Broad cross section of support – in aggregate

29.

There has been support for a three unitary pattern in Suffolk during the course of the review from St Edmundsbury, Suffolk Coastal and Waveney district councils. Forest Heath District Council showed preference for this pattern during Stage Three. Ipswich Borough Council provided no further comment on this three way split.

…

Affordability – in aggregate

31.

As agreed by the committee at the outset of the review, financial workbooks were issued to obtain information relating to the committees draft proposal and other pattern of merit. Therefore there is no available date in which to test this pattern against the affordability criteria. The committee will therefore need to consider whether in its experience and judgment … this pattern is likely to meet the criteria in aggregate.”

It was at that meeting that the decision that forms the subject of this challenge was made. The redacted Minutes of that meeting indicate that the reason for the rejection was as follows:

“The Committee considered a three unitary pattern of East/West/Ipswich (with Felixstowe) was unlikely to meet the five criteria because an East Suffolk authority was unlikely to provide strategic leadership – in that it would fail to give a coherent approach to an increasing complex landscape of local players and partnerships. The Committee felt that this pattern would fail even if Felixstowe was moved to an East Suffolk authority.”

The Further Draft Proposals were published on 19 March and it is that publication which is sought to be set aside by this application.

There is little purpose in tracing the history much further after the date of the meeting at which the decision was made. However, the terms of a letter sent by Mr Gall to the Leader of Waveney District Council on 19 February (drafted, I suspect, before the meeting on 18 February) are worth noting:

“The Committee has agreed to identify any patterns which in its judgment are likely to have the capacity to meet the five criteria and which it would potentially put to the Secretary of State as an ‘alternative proposal’. Where it has identified any such patterns it has agreed to publish them as ‘further draft proposals’ and invite representations on them. For clarity’s sake, this includes any patterns not previously identified specifically as draft proposals such as the patterns of merit which were identified in the 7 July report.”

I will deal with the question of what expectations, if any, might have been induced by this letter and/or the letter referred to in paragraph 75 above in due course (see paragraph 92 below). However, the way in which the Further Draft Proposals as decided by the Committee are described in the published document are as follows:

“4.1

This chapter contains our further draft proposals for Suffolk. In identifying these further draft proposals we have considered all the patterns and evidence put to us so far.

4.2

Our further draft proposals for Suffolk are:

•

Pattern A – a Suffolk unitary authority comprising the existing county

•

Pattern B – an Ipswich and Felixstowe unitary authority and a Rural Suffolk unitary authority comprising the rest of the county.

4.3

Patterns A and B have been identified as being likely to have the capacity to deliver the outcomes specified by the five criteria in aggregate. The order in which these patterns feature in this report should not be seen to be indicative of the Committee’s preference for one pattern over another. The proposed names for the new authorities are working titles only. Many respondents have referred to the Ipswich & Felixstowe authority that we have identified as ‘North Haven’, we do not have any views on this name and have simply continued to refer to ‘Ipswich & Felixstowe’ for consistency. It will be for the Secretary of State to agree the names of any authorities that are created.

4.4

We now seek views on both of these further draft proposals and the extent to which they are likely to have the capacity to deliver the outcomes specified by the Secretary of State’s five criteria. All representations we receive on our further draft proposals by 14 May 2009 will be taken into account. Representations that are well argued and provide persuasive evidence are more useful to us than those which simply assert a preference for one of the patterns.”

It is to be noted that there is no explicit reference to the East/West/Ipswich concept and since it was presumably one of the other “patterns … put to us” it must be presumed that it was not assessed as “likely to have the capacity to deliver the outcomes specified by the five criteria in aggregate.” It was not, of course, until the Minutes of the meetings were revealed that what appear to have been the reasons for arriving at this view were revealed.

Neither the Boundary Committee nor the Secretary of State contests the principle that the pre-consultation phase of the process described in paragraphs 20-23 above is amenable to judicial review on traditional public law grounds. Although on one view of the written submissions made by Mr Gordon it might have been thought that he was submitting that any unfairness to date could be cured during the period when representations could be made to the Secretary of State, this was not the way the matter was put in the oral submissions. Indeed the proposition, if made, could not have survived the concession made by Mr Buley to which I referred in paragraph 11 above. Irrespective of any concession to that effect, as Mr Buley accepted, the Boundary Committee is exercising a public function pursuant to statute and the normal understanding would be that judicial review remedies would be available in appropriate circumstances.

So how is the challenge made? The matter is put in a number of ways, but the essential proposition can be summarised quite shortly. Mr Findlay submits that the East/West/Ipswich concept has been unfairly excluded from being published as a possible candidate for recommendation by the Boundary Committee to the Secretary of State because (a) for the whole of the time until 12 February 2009 (see paragraph 75 above) the Committee had been working on the erroneous basis that only one proposal could be published; (b) throughout that time it did not engage in a fair and proper dialogue about the East/West/Ipswich concept and any reservations it had about it; and (c) when it regarded itself as free from the “one proposal” constraint, it failed properly and fairly to evaluate the concept and engage in any dialogue about it. It is argued that at no stage has the Committee afforded the proponents of the concept the opportunity to address even the gist of the apparent reservations it had about its ability to meet the Secretary of State’s criteria.

Mr Gordon does not accept the substantive criticisms of the Boundary Committee’s approach, but makes a number of submissions that go, he says, to the fundamental issue of the role of the Boundary Committee in evaluating proposals for unitary local government. I will turn to those shortly.

Mr Buley also submits that the complaints made by the Claimants are not well-founded and says on behalf of the Secretary of State that there must be concerns that the overall process should not be de-railed by “relatively inconsequential arguments”. As to whether the arguments being advanced are “relatively inconsequential” will, of course, depend from which side of the fence the arguments are viewed. As to the question of the process being de-railed, a number of matters do need to be borne in mind: (a) from the outset (see paragraph 35 above) it is clear that the Claimants (and others) have suggested that an East/West split met the Secretary of State’s five criteria and have submitted detailed cases in support of that general proposition; (b) they have been trying to work within the statutory process, but have never been told why the general concept they support is not apparently worthy of consideration; and (c) the stop/start aspect of the process has largely been driven by the (successful) legal challenges brought to the process in relation to the Norfolk and Devon proposals. I have no doubt that if I accede to the Claimants’ arguments, it will involve some disruption of the timetable that the Secretary of State has in mind. However, I cannot allow that to interfere with assessing the challenge on its merits.

It seems to me that the first issue to consider is the question of whether the decision of Cranston J (confirmed by the Court of Appeal) that it was open to the Boundary Committee to publish and consult on more than one proposal had or may have had an impact on what happened in this case.

Evidence of the way the Committee approached matters prior to those decisions can be found in Mr Gall’s witness statement dated 5 December 2008 in the East Devon case. He said this:

“58.

On examining the draft concepts and further information that had been supplied by the local authorities, it was not ever suggested that the Committee would provide a formal point by point analysis of them against the Secretary of State’s criteria. As envisaged by the Secretary of State’s guidance, the Committee was engaged in the process of obtaining the necessary information to allow it to compile its rationale for the formulation (or not) of a draft alternative proposal. That process was envisaged to involve local authorities and others submitting their own views on unitary solutions; however, the purpose of encouraging such views and concepts was always to assist the Committee in arriving (or not) at a draft alternative proposal of its own, and not to facilitate or create a process of analysis and choice between such concepts as were submitted.

59.

The requirement to make a judgment as to the capacity of a draft proposal to meet the outcomes specified in the Secretary of State’s five criteria refers to the alternative proposal that is actually made at the end of this process to the Secretary of State – there is no requirement to make a judgment as to whether the other concepts meet (or do not meet) the criteria …”

This approach reflects substantially the approach that Mr Gordon contended still governs the whole process, namely, that the Committee’s mandated statutory function is to form a judgment as to what it regards is the most promising alternative proposal or proposals for unitary local government in the relevant area, and to consult in the manner prescribed by section 6 in relation to that or those draft proposal(s) – my emphasis. He contends that any dialogue with potentially affected local authorities about possible unitary solutions for the area concerned foreshadowed in the Secretary of State’s Guidance at Annex B (see paragraph 27 above) is essentially an information-gathering exercise directed towards formulating the alternative proposal(s) the draft of which then becomes the subject of the section 6 consultation.

I will return to the question of whether the dialogue required under the statutory processes is, or should be, more than merely information-gathering below (see paragraph 95 below). However, I need to address the question of whether the erroneous belief that only one alternative could be published is likely to have affected the evaluations of the various concepts by the Boundary Committee in this case. In my judgment, it is difficult to see how it could not have affected the decision-making processes. It seems to me obvious that when the object of the exercise is to determine whether a proposal is likely to meet the five criteria and then whether it is published for consultation includes two distinct processes: (i) making the evaluation about the likelihood of meeting the criteria; (ii) the separate decision of whether it should be published as an alternative proposal. It seems to me that if those responsible for considering these two distinct parts of the overall process believe that (ii) can be dealt with only on the basis of choosing one option, they are bound to choose what they regard as “the best option”. What seems to me to be the problem with the Boundary Committee’s approach prior to the court’s intervention in the East Devon case is that, according to paragraph 59 of Mr Gall’s witness statement (see paragraph 89 above), there was perceived to be no requirement to consider whether any of the other concepts advanced met the Secretary of State’s criteria. Frankly, it is rather difficult to see what the point of inviting any kind of dialogue was if that was to be the view, but whether that comment is justified or not, it does seem clear that the approach did change after the court’s intervention in the East Devon case (see paragraphs 74-75 above).

The letter of 12 February (see paragraph 75 above) would suggest that all proposals that met the five criteria would be published for consultation. The letter of 19 February (see paragraph 81 above) is perhaps not quite so explicit, but nonetheless gives essentially the same message.

Mr Findlay’s short point about this is that, having given those indications of a changed approach, the Committee then proceeded to assess the East/West/Ipswich concept without any dialogue with the Claimants about matters upon which, it now appears, reservations were entertained. If it be the case that concerns about the “strategic leadership” criterion existed (which, it does have to be said, did not emerge in recorded form until the Minutes of 18 February) then, given that each authority had put forward a detailed case in respect of this, it would have been fair and would have reflected the essential nature of the required dialogue that those reservations were discussed with the local authorities concerned. He submits that if the Boundary Committee was undertaking the approach of publishing for consultation all concepts that were likely to meet the five criteria, then the Committee should not have relied upon the results of an earlier dialogue (or information-gathering process) the objective of which (namely, identifying the best option) was different. He contends that, even if the Committee had not accepted an obligation to publish all such concepts (and retained a judgment or discretion as to which of those that met the criteria should be published), the Committee had still set itself the task of identifying all the proposals that could meet the criteria which, according to Mr Gall’s witness statement (see paragraph 89 above), it had not done previously. Accordingly, he submits that an obligation to enter into a dialogue with the affected local authorities arose in the circumstances even if it had not arisen before.

As I have indicated in paragraph 90, Mr Gordon’s essential argument is that the Claimants have misunderstood the statutory scheme and, in particular, the distinction between, on the one hand, the nature of the dialogue between the Committee and potentially affected local authorities required by the Secretary of State’s Guidance (see paragraph 27 above) to be undertaken which is intended to inform the Committee’s preparation of its draft proposals by reference to any concepts suggested by such local authorities and, on the other hand, the statutory consultation under section 6 where the primary focus is on the draft proposals which have, by that stage, been formulated by the Committee. He submits that this is made expressly clear by paragraph 7 of the Guidance.

I am unable to accept this. Plainly, the Guidance is not to be construed like a statute, but any normal understanding of the two expressions ‘dialogue’ and ‘information-gathering’ does involve a sense of two different processes. There may, of course, be an overlap, particularly in the sense that information may be conveyed within the context of a dialogue. But a dialogue connotes a bilateral exchange of thoughts or ideas and not merely the provision of factual information. That proposition is derived from the ordinary understanding of language. But it is reinforced by the context in which the two expressions operate here. It cannot surely have been intended by the Secretary of State’s Guidance that a local authority could only provide what might be termed “hard” factual information to the Committee at the pre-consultation stage. It may well be that the intention was not to invite “worked up examples with full business cases containing detailed evidence against the 5 criteria”, but where an apparently thought-through proposal is advanced by a local authority, whether in relatively summary form or at a more advanced stage of presentation, it defies common sense for there not to be a discussion or dialogue about it if the objective is to decide, in a situation where there may be doubt, whether a particular criterion of the Secretary of State is likely to be met. The nature of the dialogue may, of course, vary depending on the nature of the proposal being advanced and the status of the party advancing it. But any self-denying ordinance on the part of the Committee so far as true discussion and true communication of views and ideas is concerned must, I would have said, be wrong. Equally, there must be true engagement with the issues: it would not, in my view, be achieved by the Committee simply receiving the representations, not engaging them and not discussing any doubts that may arise and simply saying that an open mind is being kept.

Mr Gordon raised the spectre of resource implications and the question of whether, if the Claimants are right, it would be necessary for the Committee to examine in depth every proposal and then ensure that every party affected by each proposal has the chance of commenting upon those put forward by others and so on.

I am, of course, alive to resource implications as a general difficulty for all public bodies entrusted with difficult and time-consuming issues to consider, resolve and report upon. However, it is important not to be carried away by fears and matters of this nature: this case concerns how the Boundary Committee should respond, at the pre-consultation stage, to apparently well-articulated and well-supported proposals by reputable local authorities. As it happens, the four local authorities concerned represent between them approximately 57% of the population of Suffolk. That does not give them the right to dictate the outcome of the statutory process with which this case is concerned, nor indeed are they seeking to do that. However, they do, in my judgment, have the right to have their proposals fully and properly considered and evaluated at the pre-consultation stage. The importance of this is highlighted by the concession made by Mr Buley to which I referred in paragraph 11 above. Full and proper consideration does, in my view, include, either as a matter of straightforward fairness or simple good administration, inviting assistance through dialogue on areas where doubts exist about whether the proposal meets any or all of the Secretary of State’s criteria. Not to engage in such a process and then to announce (obliquely) that the proposal does not meet the criteria would not, in my view, meet the expectations of someone who had seen the slide talking of an “open minded, accessible and consultative” approach by the Committee or who had read the advice note referred to in paragraph 30 above.

Although I have been referred to a number of authorities on the issue of fairness and flawed consultation, I am not sure, with respect, that many take me much further than where the consideration of the stated objectives of the Boundary Committee has already taken me. The flexibility of the concept of fairness is well understood: see R v Secretary of State for Home Department, ex parte Doody [1994] 1 AC 531, 560, per Lord Mustill.

The nearest comparable situation in the cases to which my attention was drawn seems to me to be afforded by R v Secretary of State for Transport, ex parte Medway Council [2002] EWHC 2516 (Admin). In that case various applicants challenged the exclusion by the Secretary of State for Transport from a Consultation Document entitled ‘The Future Development of Air Transport in the United Kingdom: South East’ consideration of “any options for new runways at Gatwick.” The case of the applicants was “that, one way or another, Gatwick will have to be considered in the future and that is obvious.” In the event of certain future planning applications the Medway Council would seek to promote Gatwick as an alternative but, at that stage, “the metaphorical dice would be loaded against them” because they “would be arguing against Government policy enshrined in the White Paper.”

In relation to this argument Maurice Kay J, as he then was, said this:

“31.

It cannot be doubted that the Claimants are disadvantaged by the exclusion of Gatwick options from consideration in the consultation process. The question is whether that process is tainted with unfairness as a result of that exclusion. The submission on behalf of the Secretary of State is that (1) the requirement of fairness cannot remove from him all discretion as to what is to be included or excluded from the consultation process and (2) the requirement of fairness is limited to procedural fairness whereas what is alleged here is more in the nature of a lack of substantive fairness in that it goes to a decision rather than the way in which it is reached.

32.

I do not accept the first of those submissions. It is for the Court to decide what is or is not fair. If a consultation procedure is unfair, it does not lie in the mouth of the public authority to contend that it had a discretion to adopt such a procedure. The question is whether the procedure in the present case is fair or unfair. That brings me to Mr. Corner’s second submission. I accept that fairness in this context is synonymous with procedural fairness rather than substantive fairness which concerns the effect of a decision as opposed to the way in which it was reached. However, it is important not to be too schematic in considering this distinction. The decision-making process with which this case is concerned began before the Consultation Document was published and it will continue through the White Paper, probably to the determination of one or more planning applications at Secretary of State level. It is common ground that the issue of Gatwick will probably re-emerge, if only as a proffered alternative solution. The question really becomes this: knowing that the Claimants will probably and legitimately wish to advocate Gatwick as an alternative solution at a later stage in the decision-making process, is it procedurally unfair of the Secretary of State to operate the consultation process in such a way that the Claimants lose their only real opportunity to present their case on Gatwick without there being in place a Government policy which, realistically, will present them with an insurmountable hurdle? In my judgment, when one considers the decision-making process as a whole, the answer is that to operate the consultation process in that way is indeed procedurally unfair. Accordingly, this ground of challenge succeeds.”

Mr Gordon sought to distinguish the approach in that case by asserting that in the present case the Committee did not exclude the Claimants’ preferred concepts from its process. On the contrary, it received and considered detailed representations in relation to them before exercising its own judgment as to the most appropriate proposals on which to focus during the later stages of the process. But, in a sense, this is merely a repetition of the arguments already advanced on the merits. He had submitted that it remained open to the Claimants (depending on what advice is given to the Secretary of State) to make further representations to the Secretary of State if the draft proposals are made the subject of final advice by the Committee. However, Mr Buley’s concession, as I have characterised it, rather undermines that proposition.

Whilst I recognise that the situation in the Medway Council case is different from the present case, I derive comfort from the decision that it is open to the court, applying the general principles of fairness in the public law context, to interfere in what are in effect the preliminary processes leading to a formal public consultation exercise to ensure that all relevant matters are included within that consultation exercise.

For the avoidance of doubt, my conclusion is that the Boundary Committee should have discussed with the Claimants any reservations it had about whether the concepts advanced met the Secretary of State’s criteria before publishing the Draft proposals in July 2008 and also in March this year. Since only those published in March this year are those that will influence the advice, if any, given by the Committee to the Secretary of State in due course, it is, strictly speaking, only necessary for me to reach a conclusion about the processes leading up to making the decision that led to the March publication. However, the two processes form part of the overall process that commenced in February last year and it is somewhat unrealistic to deal with one part in isolation from the other.

It follows, therefore, that the Claimants are prima facie entitledto the relief they seek. I have received written representations from Mr Buley on behalf of the Secretary of State about the precise form of that relief. I have indicated to the parties that I will consider these representations when I have received a response on behalf of the Claimants and then determine the precise terms of the relief to be granted.