East Devon District Council v Electoral Commission (The Boundary Committee for England)

On the 28^th of November I delivered judgment in Breckland District Council v Boundary Committee [2008] EWHC 2929 (Admin). That was a challenge by three local authorities in Norfolk to consideration by the Boundary Committee of a proposal which could result in their abolition and the introduction of a unitary system of local government in that county, extending to part of Suffolk. Important in my view was the context of the proposal, the future of local, representative assemblies, a building block in our democracy, and the institutional and social patterns which will have grown up around them. In essence I held that Parliament had imposed on the Boundary Committee, an expert and politically neutral body directly within Parliament’s remit, an obligation of meaningful consultation about any proposal it might consider advancing on local government reorganisation. However, I held that the consultation process could be staged so that consultation on the affordability of a proposal did not have to be undertaken simultaneously with consultation on the other relevant criteria identified by the Secretary of State for Communities and Local Government. Those other criteria are a broad cross section of support, strong and effective leadership, neighbourhood flexibility and empowerment, and value for money and equity with public services: see Breckland, paragraph 9. While satisfied that the Boundary Committee had commenced consultation on the affordability criterion, I indicated that I did not believe that there would be time to complete the process by the anticipated deadline of December 31^st. Having said that, I regarded the challenge on this ground as premature, as the deadline could be extended. That has been done. As far as the merits of any proposal vis-à-vis the status quo of local government organisation in Norfolk were concerned, I did not consider that it was a relevant consideration to which the Boundary Committee had to have regard in its deliberations.

The present challenge arises in relation to the Boundary Committee’s review of local government in Devon. The claimant council, East Devon District Council (“East Devon”), covers what in its way is a matchless part of the county, with a coastline having world heritage status. The implementation of the structural change presently under consideration would result in the abolition of the council, along with those of the other seven district councils in Devon, and their replacement by a single unitary local authority. The grounds of challenge track, to a considerable extent, those in the Breckland case, consultation and affordability. In saying that I do not intend to downplay the erudite and sophisticated arguments advanced by East Devon on these matters. One of those arguments – concerning the audience to be consulted – is especially crucial and marshalled for the first time in the current litigation. As well as consultation and affordability, there is a focus absent in the Breckland case on any required comparison with the original proposal for unitary government in Exeter, which triggered the present review. Moreover, East Devon contends that the Boundary Committee has committed errors in wrongly believing that it is permitted to propose only one new structure of local government for Devon, and in misunderstanding an aspect of how it was intended to conduct its review, namely, what was meant by conformity of a proposal with the criteria “in aggregate”.

The general background to the Boundary Committee’s current considerations of local government in various parts of the country is set out at paragraphs 5-7 of the Breckland decision. In response to the Secretary of State’s October 2006 invitation, Exeter City Council (“Exeter”) made a proposal in early 2007 for a new unitary authority based on its existing boundaries. That proposal was one of the 26 proposals made by local authorities for unitary local government in response to the invitation. During 2007 there were discussions between Exeter and the Department for Communities and Local Government about Exeter’s proposal. Thus in March Exeter responded to a number of questions about its business case. In a Parliamentary statement in July the Minister for Local Government said that there was a concern about the ffordability of the Exeter proposal and he was asking the council to undertake further work and to submit additional information on the financial viability of its proposal. In December 2007 the Secretary of State stated that she was at present minded not to implement the Exeter proposal, because she was not satisfied that it met the affordability criterion. However, she had decided to ask the Boundary Committee for advice on it.

As would be expected preparatory discussions took place between civil servants and officers of the Boundary Committee. In the middle of December 2007 the Boundary Committee wrote to the Minister for Local Government expressing gratitude for the assurance that if the Committee were to undertake the task “there would be no question of us being drawn into expressing views on the merits of two-tier versus unitary structures. That in our view is a policy matter for government, not the Committee.” Concern about the timescale was expressed in that letter. “To have any credibility in the eyes of local interests in Devon … both the process and the Committee’s advice must be seen to be evidence-based”. On the 28^th January 2008 the Secretary of State wrote to the Boundary Committee that it would be for the Committee to obtain such information as it might reasonably require to compile the necessary rationale for any draft alternative proposal which it formulated. In response the Boundary Committee underlined that providing advice on the issues was a considerable task and that to do so by the 31^st December 2008 was a very tight timetable.

At paragraphs 8-13 of the Breckland decision there is a discussion of the Secretary of State’s request of the 6^th February 2008 to the Boundary Committee in relation to Norfolk. There was a request of the same date covering Devon, in which she asked the Boundary Committee whether it was possible to identify a proposal for unitary local government for Exeter and the whole or parts of Devon which would satisfy the five criteria and, if such a structure could be identified, whether the Boundary Committee would make that proposal. The request repeated that the Secretary of State was not minded to implement the Exeter proposal and there was no request for advice on it. In respect of Devon, the request ran as follows:

“8.

The matters on which the Boundary Committee is requested to advise in relation to the unitary proposal from Exeter City Council are:

(a)

whether there could be an alternative proposal for a single tier of local government, and if so on what basis, for Exeter and the whole or part of the surrounding Devon country area … which would in aggregate … have the capacity if it were to be implemented, to deliver the outcome specified by the five criteria …; and

(b)

if there could be such an alternative proposal for a single tier of local government as referred to sub-paragraph (a) 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 proposal is a reference to the making of a proposal in accordance with the procedures set out in section 6(4) and (5) of the 2007 Act.

9.

For the purposes of paragraph 8 above, boundary changes to Plymouth City or Torbay Borough are to be considered necessary only if, on the basis of any evidence received, the Committee considers that: they are essential if there is to be an alternative proposal for a single-tier of local government for Exeter or the whole or part of the surrounding Devon country area which would in aggregate (including any implications for Plymouth City Council and Torbay Borough Council) have the capacity, if they were to be implemented, to deliver the outcome specified by the five criteria … And in any event such boundary changes should be considered only to the extent that they maintain the concept of the City and Borough.”

The request was accompanied by Guidance, in the same terms as that outlined in the Breckland decision, paragraphs 10-13.

The Boundary Committee then set about its task. In early March 2008 it gave a presentation to local authorities in Devon about the manner in which it proposed to conduct the process in relation to Devon. One of the slides of the Boundary Committee in its presentation summarised the Secretary of State’s request for advice as to “[p]rovide advice on alternatives to Exeter bid”. In a document produced by the Boundary Committee late in March, entitled “Messages for Local Authorities”, designed for internal use so the Boundary Committee and its staff could provide the same message when responding to enquiries, the following passages appear:

“Is the status quo/existing two-tier system an option?

The Committee has been asked to provide advice on whether there is an alternative unitary pattern of local government for each of the counties concerned. The status quo only becomes an option if we are unable to identify an alternative proposal and/or the Secretary of State does not choose to implement an alternative unitary proposal.

So you could recommend the Secretary of State that the Exeter … bid be accepted?

The Secretary of State has already rejected those bids – that is why the Committee has been asked to provide advice. Our objective is to see if there is an alternative pattern of unitary local government that will reasonably meet all the five criteria across the county as a whole, both in aggregate and individually.

What does “in aggregate” mean?

Our starting point for the review is to provide advice and make alternative unitary proposals for the whole county that best meet the five criteria. In our view “in aggregate” means that any unitary authority that the Boundary Committee makes as an alternative proposal will be reasonably likely to meet all the five criteria. We understand this means that not all the individual authorities need to meet all the five criteria. We are looking to recommend a pattern that across the county will. It is for the Committee to make a judgment on how whether [sic] the criteria will be met in aggregate and it will not use a strict scoring system that ranks criteria.”

In March the Boundary Committee also produced a document entitled “FAQs on Structural Reviews of Devon, Norfolk and Suffolk”, in which there are set out the following questions and answers.

“Is the status quo/existing two-tier system an option?

The existing two-tier system will only remain if we are unable to identify any alternative proposal or if the Secretary of State does not choose to implement an alternative proposal.

Could you recommend to the Secretary of State that the Exeter, Ipswich and Norwich bids be accepted?

It would not be in the interests of either local government or council tax payers for the Committee to advise the Secretary of State to implement a bid that has already been demonstrated not to have met the affordability test.”

Early in 2008 there had been correspondence about the Exeter proposal between the leader of Exeter council and the Secretary of State. The leader of the council had written that he had been told that his council’s proposal was dead but he understood that it was still an option. The Minister for Local Government replied that it was open to the Boundary Committee to advise the Exeter proposal, but that given the Secretary of State’s views, were it to be recommended she would need to be convinced that it had the capacity to deliver the outcomes specified in the five criteria. Further correspondence followed, copied to the Boundary Committee. This led the Boundary Committee to express surprise to the Secretary of State at the suggestion that she had not taken a final decision on the Exeter proposal: “The Committee would be concerned if there were to be any perception by interested parties that its current work in Devon was simply a method by which the city council bid might be reinstated”.

The Boundary Committee had written formally to East Devon’s chief executive in early March informing him that it was commencing a structural review of local government in Devon. It said that it would be much appreciated if the council could publicise the start of the review by placing copies on display in council offices and by taking other steps so as to bring the review to the attention of the public and other interested parties. In April the Boundary Committee conducted meetings with local authority finance officers and noted that it would be using four of the five criteria at that stage, but not affordability. It was made clear that affordability would be considered later in the process. In June the Boundary Committee wrote to councils in Devon explaining the consultation process, that the draft proposals would be published in early July, and that it would post out leaflets and posters. It asked that these be displayed in appropriate locations such as one stop shops and libraries. Copies of the report would be made available and local authorities were asked to assist to distribute them to the same locations for public display.

Meanwhile, the Boundary Committee itself was debating the issues. Informal minutes at a meeting in mid-May indicated that it may have felt ham-strung by legal advice it had received that it could only advance one alternative proposal. How would it maintain maximum wriggle room if the proposal needed modification in the face of compelling evidence? If nobody was happy with the proposal would it have to consult again? If it developed two different proposals and said they were both viable, what would happen? If unitary local government in Devon was proposed, but two unitary local authorities in Devon were overwhelmingly favoured, was it permissible to pursue the latter? Subsequent internal notes of the Boundary Committee, while suggesting that wriggle room was not problematic, emphasised that the Committee was limited by legal advice that it could only recommend one alternative proposal. At its May meeting there had been a good deal of discussion about whether or not Exeter should be included. Could Devon succeed without Exeter, one question ran? At the meeting there was also a discussion about whether two unitary local authorities in Devon would work.

In early July 2008 the Boundary Committee published its Draft Proposal for Unitary Local Government in Devon (“the Report”). That proposed a single unitary council for Devon, excluding Plymouth and Torbay, which were already unitary local authorities. It paralleled a concept already promoted by Devon County Council in its document, Flying the Flag for Devon. In the opening summary to the Report the Boundary Committee said it would welcome views and evidence from those who had already written, but also from those from whom it had not yet heard. “The Committee places great importance in ensuring openness and transparency in the way we deal with all representations … Submissions will also be available for viewing on the Committee’s website, at www.BoundaryCommittee.org.uk.” The Report began in its introduction with the history, noting the Exeter proposal, and the Secretary of State’s announcement in December 2007 that in her judgment it was not a reasonable likelihood that, if the Exeter proposal were implemented, it would achieve the outcome specified in the five criteria, especially as regards the financial case. The Committee reiterated its position that “we cannot recommend the retention of a two-tier structure in preference to a unitary pattern. The status quo would only result if we were unable to identify any unitary pattern that meets the criteria in the Secretary of State’s guidance, or if the Secretary of State decides not to implement our proposals” (paragraph 2.21). Although the Committee made clear that the 2007 Act in its view required it to set out a single draft proposal, and that it had no power to seek views on a range of potential options, nonetheless

“we have identified a further pattern that, in our judgment, might also meet the Secretary of State’s criteria against which our draft proposal can be assessed. Interested parties may wish to have this further pattern in mind when commenting on our draft proposal” (paragraph 2.22).

That “further pattern”, which the Boundary Committee thought had merit, involved two unitary authorities – an Exeter and Exmouth authority comprising those two urban areas and their surrounding parishes, and a Devon authority comprising the remainder of the county. (The boundaries of Plymouth and Torbay would not be changed). At paragraph 2.29 the Committee recognised that many people would find the prospect of a move to unitary local government unwelcome or were indifferent to change, and may be content with the existing two-tier structure.

“It is no part of our task to “champion” unitary structures over two-tier, or visa versa. Rather, as indicated above, we are asked by the Secretary of State whether there is a viable single tier of local government for the county. In our view at this stage, having weighed all the evidence received and the information we have collected, this would appear to be the case.”

Regarding affordability – discussed at paragraph 19 of the Breckland decision – the Committee said:

“We have not sought at this stage to assess the affordability of our draft proposal. Given the number of alternative patterns of unitary local authorities that have been suggested to us since the start of our work, and the resource cost to local authorities in providing us with the necessary financial information, we took a decision early in the review process to assess affordability only when we had reached a conclusion on our draft proposal and we had published it for public comment. Local authorities in Devon will be providing financial information on each of the patterns of unitary authorities laid out in this report. We have requested this information by the 5^th September 2008. This information will help inform our view in assessing the affordability of any new unitary authority” (paragraph 2.56).

Chapter 4 of the Report set out the Boundary Committee’s proposal for a single unitary authority for Devon, not including Plymouth and Torbay. It need only be noted that at paragraph 4.5 the Committee said that it had considered the implications of structural change across the two-tier area and was satisfied that, in aggregate, its draft proposal for Devon had the capacity to meet the outcomes specified in the Secretary of State’s five criteria.

In the second week of September the Committee published a press release, “Let Committee Know Your Views on Local Government” (see paragraph 24 of the Breckland decision), encouraging members of the general public to comment on its draft proposal by writing to the Boundary Committee or filling in an online form. That was followed by a further press release of the 3^rd October, where the chair of the Boundary Committee expressed gratitude for the submissions from people in Devon about unitary local government and said that while consultation had finished the previous week “the Committee will still give people time to write in with their views”. The press release went on to say that the Committee would now consider carefully all the submissions received before giving its advice to the Secretary of State by the end of the year. It added that all the submissions could be seen on the Boundary Committee website.

In late September East Devon responded to the Report, rejecting the draft alternative proposal of the Boundary Committee, suggesting that there were alternative models for unitary local government within Devon which should be revisited, failing which it considered that the existing local government structure better delivered the Secretary of State’s criteria in aggregate than the draft alternative proposal. At some point it appears that Devon County Council, in support of the draft alternative proposal, asserted that the savings from adopting it would be £29 million over the first five years after paying back transitional costs and making investments in local communities. In its response to the Boundary Committee East Devon took exception to these figures. It considered the level of predicted savings to be no more than 3%, which represented only slightly more than the targeted level of efficiency savings to be produced by Devon County Council as result of the Gershon Review, which had reviewed efficiency in the public sector in 2004-2005.

The collection of financial information, relevant to the affordability criterion, is outlined in the Breckland decision (paragraphs 26-27, 50-53). At the time it published the draft proposal the Boundary Committee had requested local authorities in Devon to provide certain financial information by the 5^th September, later extended to the 12^th September. This took the form of “workbooks” designed by financial consultants engaged by the Boundary Committee. Local Government Act 1972, section 151 officers were required to sign a certificate to accompany the data which had two parts, the first confirming that base financial data supplied was accurate, and the second confirming that the officer had been consulted about the calculation of the figures used for transitional costs of moving to a unitary authority. In mid September the East Devon section 151 officer signed a certificate as to the first part, but said that there was too little time for him to vet properly the figures as to the second part.

In October the Boundary Committee displayed on their website detailed financial data which had been received through the workbook exercise. On the 21^st November the report of the independent financial consultants to the Committee was added. That included a 36 page summary report which outlined the consultant’s view about which authorities were most likely to meet the affordability criterion. The consultants divided affordability along five dimensions: transitional plan, payback, capital, balances and council tax compared with the average level. They then made an assessment as to whether or not each of these was likely to be achieved, leading to an overall risk assessment of each particular proposal. Thus in the case of a single unitary authority for Devon – the draft alternative proposal – the overall risk was estimated as low. Behind these overall assessments, however, was considerable detail. For this hearing East Devon has prepared a critique of aspects of the financial consultants’ report on, for example, the issue of balances.

At the time the financial consultants’ report became available the Boundary Committee published on their website a release which observed, in part:

“These reports [from the independent financial consultants] form just one strand of evidence which will be taken into account by the Committee before it produces any advice to the Secretary of State. The Committee has not commented on this analysis and had not made any judgment on the information contained within the reports. It is important to note that the conclusions in the financial consultants’ are not, automatically, the Committee’s conclusions in relation to this criterion. The Committee will evaluate the financial consultants’ report, and representations on affordability, and arrive at its own assessment of affordability.”

The press release invited observations to be sent to the Boundary Committee in writing or by email by the 5^th December, later extended to the 19^th December. There was a flurry of press coverage in a range of newspapers in Devon including the Western Morning News, the Exeter Express and Echo, the Mid Devon Star, the North Devon Journal and the Herald and Express (Torquay). The extended deadline for comment was a result of the Breckland decision. In the light of that judgment the Secretary of State also informed the Boundary Committee that she had decided to substitute a later date of the 13^th February 2009 for the date of the 31^st December 2008 specified in the Request as the time by which the Boundary Committee was expected to report to her.

In early December the Secretary of State published new guidance regarding the concept of aggregation:

“4.

The Secretary of State included the term “in aggregate” in the request to make clear that any alternative proposals for unitary local government must have the capacity to meet the five criteria across the specified area. However, it is not clear to the Secretary of State from the financial information published by the Boundary Committee on 21 November 2008 that the Committee is approaching the assessment of alternative proposals on this basis. The Secretary of State has therefore decided that it would be helpful to the Boundary Committee to provide additional guidance as to the approach that the Secretary of State was seeking through the use of the term “in aggregate”.

5.

The assessment of a proposed unitary solution’s capacity “in aggregate” to deliver the outcomes specified by the criteria will be relevant where that solution consists of two or more proposals that there should be a single tier of local government for an area (and that are not alternatives to one another) (i.e. an alternative proposal within the meaning of section 5(5)(b) of the 2007 Act).

6.

The term “in aggregate” applies in particular to the affordability of any alternative proposal. It might of course also be applicable to the other criterion which relates to the transition from two tier to single tier local government, namely, the broad cross section of support criterion. For example, if there was very strong support in one part of an area for it to become unitary, minority support for a unitary authority for the remaining area might be considered sufficient.

7.

In relation to the assessment of affordability, if the Boundary Committee identifies a possible unitary solution of the type described in paragraph 5, it should assess the capacity of that unitary solution as a package to meet the criteria, rather than assessing the capacity of each of the two or more proposed new unitary authorities separately. For example, if the Boundary Committee was contemplating a unitary solution which consisted of splitting an existing county (County X) into two new single tier areas (Area A and Area B), the assessment to be made against the affordability criterion would be whether Areas A and B, when taken together, met the affordability criterion.

8.

Such an assessment would require the transitional costs associated with the creation of each proposed new unitary authority to be aggregated, and for the purposes of assessment against the criteria, compared with the aggregate of the savings that would result in each of the areas. Furthermore, for the purposes of this assessment, any consideration of the need to fund costs by reserves and of the availability of reserves, should be approached in aggregate without seeking some apportionment between the two or more areas.

9.

In this way, by the effective pooling of costs, savings and reserves across a specified area (the area of County X in the example), it may be possible to deliver unitary solutions for that specified area that offer benefits to local communities which would not be available if the matter was approached on the basis of looking only at parts of the specified area in a wholly discrete manner. Hence, in the example, whilst Area A might not on its own be affordable, because it is not able to cover the transitional costs associated with that area with its own reserves, it might be affordable if the reserves for the whole county area are pooled and then apportioned on a basis which meets the transitional costs in both Areas A and B. It is for this reason that in the Request, the Secretary of State included the term “in aggregate”. ”

CONSULTATION: STAGING

East Devon submitted that the approach I adopted in the Breckland case was wrong. Consultation could not be in stages. Rather, the process envisaged by the Act was a single consultation exercise. Consultation by breaking it into stages was both confusing to the public and depressed levels of response. As a matter of law, there could be no “draft proposal” unless it was provisionally considered by the Boundary Committee to have the capacity to deliver the outcome specified by the five criteria. The structure of section 6 of the Act means that there must be a provisional view at least that there is a possible alternative proposal of which a draft is published for consultation. The draft published in July could not be “a draft of the proposal” but only a partial draft proposal, since it did not address affordability. Consultees were deprived of the opportunity to make representations as to why the July proposal might not conform to the criterion of affordability. To confine representations to what has actually been proposed, to the exclusion of relevant observations which may not have been considered in relation to that proposal, was to give the statutory language “representations about it” an unnatural meaning.

Despite the persuasiveness with which the East Devon argument about staging was advanced, I see no reason to disavow my approach at paragraph 44 of the Breckland decision. In my judgment it was open to the Committee, in performing its statutory task, to choose to defer consideration of affordability until publication of its draft proposal. In the circumstances that was not irrational, since the Committee did not wish to impose undue burdens on local authorities at an earlier stage, and also needed to collate information from them in the form of the workbooks with relevant financial information. The Boundary Committee made this approach plain from the outset, that it would postpone the consideration of affordability until after publication of the draft proposal. It has now published that financial information, through the workbooks and the report of the independent financial consultants. Thus it is in a position to consider affordability prior to making a decision on what advice, if any, to give to the Secretary of State. The crucial issue, in my view, is not staging in itself but whether the Boundary Committee has been able to consult adequately on affordability by staging consideration of the criteria in this way. To that I now turn.

The first building block of the East Devon submission on consultation was informed by an acute knowledge of local government law and history. Beginning in the 19^th century, the principle of making structural changes to elected local authorities has not been a matter decided solely by central government, but one requiring independent support and justification. The independent element, whether by barristers, boundary commissioners, the local government board or local enquiry culminated in the 2007 Act, which still limits central government power. The only two avenues by which proposals for the replacement of two-tier local government for an area by unitary local government may be made are an invitation by the Secretary of State to local authorities in an area or an alternative proposal by the Boundary Committee following such a proposal. In other words, structural change can still only be brought about if either at least some of the elected local representatives in an area propose change, or the independent and expert Boundary Committee put something forward. The consultation provisions reflect the Boundary Committee’s historic role. Whereas consultation by the Secretary of State on a proposal need only be with local authorities in the area and “such other persons as he considers appropriate” (section 7(3)(b)), consultation by the Boundary Committee must be with the wider group of persons interested (section 6(4)(b)). That, in the East Devon submission, leads to two propositions. First, that the consultation exercise to be carried out by the Boundary Committee should not be narrowly limited, and secondly that it is not open to confine it in any way to those who somehow qualify as expert.

In my judgment the East Devon submission in this regard is correct. Although the phraseology of section 6(4)(b) refers to consultation with persons who “may be interested”, in my judgment that must be the public as a whole given the importance of the issue at stake – the continuation of local representative assemblies and the patterns of service and regulation for which they are responsible. In practice the public as a whole includes local taxpayers, local authority tenants, local authority employees, and those who may be actual or potential recipients of local authority grants and services. In my judgment it is necessary to consult the public even in relation to what might on the surface appear to be relatively complex matters. Within the community there will always be persons who have an expertise in such matters. For example, there will be retired local government officers, academics and accountants who will be able to shed light on what other members of the public might regard as the arcane. Moreover, even ordinary members of the public may well be able to express a view on what appear to be complex matters, once these are stripped down to simpler terms.

The second building block in the East Devon argument on consultation concerns the need to publish sufficient information in a timely fashion. Without that consultees are deprived of an opportunity to assess and comment upon an issue. While consultation at too early a stage is insufficient to discharge the obligation to consult, if matters have not been formulated with sufficient detail to enable meaningful responses, by the same token consultation at the end of the process is unacceptable, where there is insufficient time to comment or where the impact of any response on the body consulting in likely to be minimal since it will already have formulated its view.

Again I accept that submission in general terms. The purpose of consultation by the Boundary Committee in this case must be to enable the public to express their views about whether or not the draft proposal about a Devon unitary authority should be placed before the Secretary of State. Their views on this will be expressed in a variety of ways and cover a range of matters. However, one aspect is affordability – one of the five criteria on which the Secretary of State wished to have the matter evaluated – and the public must be given an adequate opportunity to express their views on this issue in a way which has a meaningful impact.

What, in practice, has happened? East Devon submits that the public have not been provided with sufficient information or opportunity to comment on the affordability issue. As explained earlier, the information in the workbooks has been available on the Boundary Committee website. At the end of the third week of November the report of the Boundary Committee’s independent financial consultants was placed on the website as well. That, in East Devon’s submission, is insufficient. There is no indication as to how the information might be used or applied in connection with the draft alternative proposal. The information has not been converted into a format which would make it easily accessible to an ordinary member of the public or many other consultees. There is an enormous range of figures from a multiplicity of sources and with matters such as transitional costs the figures have been assembled under headings which do not allow comparisons of like with like. The figures which are available do not take into account any impact which the current economic climate may have had. Finally, the public have not been notified adequately that the information is available and how they should respond if they have particular views. Uploading information to a website, combined with a willingness to listen to representations, does not constitute consultation as a matter of law.

The answer to whether the public have been consulted in a meaningful and timely manner needs to be assessed against the backdrop of the particular consultation exercise. In my view, like many aspects of our democratic process consultation may be tangled and untidy. It encompasses a multitude of parties with a range of expertise and interest. Importantly, ideas are typically mediated through opinion leaders, in this case the council itself, councillors, parish councils, the local press and so on. Opinion leaders, in particular public bodies, will express views but they also have a duty to perform in assisting the public to understand complex issues if consultation is to work. Thus consultation is far from linear in nature. With a complex matter such as affordability, the mediation process will usually result in a “bottom line”, possibly a figure such as that produced by Devon County Council in their initial estimate that the proposal would save some £29 million, or otherwise a categorisation such as the “low risk” reached by the Boundary Committee’s independent financial consultants on the proposal. It will be to that stripped down version of what in fact is a complex issue that the general public will react. None of this is to belittle the wisdom of the general public; our democratic system relies on that wisdom even with knotty and elaborate issues. The public must be consulted in a timely and meaningful way, but the law must recognise the realities and imperfections of our democratic processes.

Against this background the Boundary Committee have, in my judgment, met their statutory obligation to consult on affordability. I reach that conclusion applying the test of enhanced scrutiny expressed in the Breckland decision: paragraph 39. The Committee have made public, via its website, detailed financial information on affordability. The workbook information has been there for some time and the report of the Boundary Committee’s independent financial consultants since late November. That information has been placed on the website against a background where, for some time, the Boundary Committee has through its press releases encouraged ordinary members of the public to comment on its proposals and said that it would accept submissions after the closing date for responses to the July Report. The publication of the independent financial consultants’ report was press released and there was coverage in the local newspapers in Devon. While it is possible to critique, as East Devon does, the nature of the coverage, and its failure to specify how readers might express their views to the Boundary Committee, that has to be seen against the background of the publicity attracted to the issues since the July Report and earlier, and also to the reality, as explained, that consultation is an imperfect process. It may be that many members of the public are not be in a position to make meaningful representations on all the financial data on the Boundary Committee website but they have the “bottom line” on affordability. In my judgment the Boundary Committee has fulfilled its statutory duty to afford those interested the necessary information to make meaningful representations on affordability. For the future the Boundary Committee may well modify its approach in the light of lessons learnt from the current exercise, but that is no basis for judicial review in the present case.

East Devon contends that the failure to consult on affordability as part of the Report in July was irrational given that it was the failure of the Exeter proposal on affordability grounds which led to the Secretary of State’s request for Boundary Committee advice. The Devon County Council proposal, on which the Boundary Committee’s draft proposal was based, included no affordability assessment. The affordability criterion requires that any change must be met from councils’ “existing resource”. Since affordability is such a key issue the public must be consulted about it and they are entitled to respond in the course of the principal consultation exercise.

Since I have held that there has been consultation on affordability which meets the statutory mandate, I see no basis for a challenge on rationality grounds. In my view the rationality argument is, in effect, the challenge mounted on staging and consultation, and already considered, in a different guise. If consultation on affordability accords with the statutory language, then in my view there is no basis for a rationality challenge.

In Breckland I held that the issue of status quo was irrelevant to the Boundary Committee’s consideration under the 2007 Act: paragraphs [60]-[64]. In the East Devon submissions, this is said to be incorrect since statute entrusts the Boundary Committee with power to act in specific circumstances. It is not entitled to commit itself in advance to making an alternative proposal if it can identify one which would meet the Secretary of State’s criteria and which could be, for example, the retention of the status quo as a better option. Whatever the Request and Guidance might say, they cannot dictate the range and construction of the Boundary Committee’s statutory powers. This submission is coupled with an attack on the Boundary Committee consultation: since consultees had been incorrectly told that the retention of the status quo was not an option, they would not have responded or some would not have responded in the way they would have if the Report had not been unreliable.

Nothing has been advanced by East Devon before me to lead me to reverse my earlier view. As pointed out in Breckland, the Boundary Committee will consider any representations about the retention of the existing two-tier system since one of the criteria is whether the Committee’s draft proposal enjoys a good cross-section of support. Admittedly that does not go to whether the existing two-tier system is preferable to a possible alternative, but it does mean that views about the merits of a two-tier system of local government have not been shut out by the Boundary Committee.

East Devon makes the same criticism about the absence of consideration of the original Exeter proposal. In the East Devon submission, although there was no need for the Boundary Committee to consult on the Exeter proposal, it had to be mentioned as a possibility. Yet the Exeter proposal, like the status quo, has been treated as beyond the scope of the Boundary Committee’s consideration. The Frequently Asked Question (FAQ) response on the Exeter proposal is illustrative of the way in which the Boundary Committee eliminated it from its mind. That confirmed publicly what is also contained in the correspondence with Exeter and in the internal minutes, summarised earlier. The rejection of the Exeter proposal breached a fundamental rule of public law, that the Boundary Committee was obliged to consider the matter for itself, rather than simply to accept the views expressed at an early stage by the Secretary of State that she was not minded to adopt it because of problems of affordability.

Not only was the Boundary Committee obliged to reach its own decision on material matters such as this, but in particular it needed to have regard to the narrower basis on which the Secretary of State’s decision on affordability of the Exeter proposal would have been reached. First, under section 7 of the 2007 Act the Secretary of State conducted consultations with a narrower class of persons than the Boundary Committee. She must consult those she regards as appropriate whereas the Boundary Committee must consult more widely. Moreover, the Secretary of State’s conclusions on the affordability of the Exeter proposal was based on 2006-2007 figures whereas more recent financial information, available to the Boundary Committee, may well have led to a different conclusion. Although the 2007 Act does not oblige the Boundary Committee to engage in a process under which the Exeter proposal is placed on all fours with any alternative proposal which is advanced in relation to Devon, East Devon submits that something more is required than the Boundary Committee’s current position that, in considering whether there is a broad cross-section of support for the draft proposal, they will consider all representations made about it, including those which support the Exeter proposal.

In my judgment, the Boundary Committee has gone as far as necessary. In evidence before the court, the Boundary Committee’s director has said that it was mindful that if advice were to be given to the Secretary of State at the end of the process, one of the available options would be to recommend implementation of the Exeter proposal. In his evidence, he says that the Committee gave weight to the statement by the Secretary of State that she was not minded to implement the Exeter proposal due to doubts about its ability to meet the affordability criterion. Given the terms of the Request, and given that the affordability criterion was one capable of being readily measured in objective terms, the director says that the Committee reached the view, at an early stage, that it should not involve itself with further investigation of the Exeter proposal. While the Boundary Committee’s minutes are not as explicit as might be desirable on the matter, one can appreciate how the Boundary Committee would have digested the stance taken by the Secretary of State on the Exeter proposal, given it weight, and decided not to proceed up the cul de sac of giving the issue prolonged consideration. I can see no evidence to the effect that the Boundary Committee did not reach its own decision on the matter. It is obvious that it gave quite considerable weight to the Secretary of State’s view, but in my view there was no public law flaw in this regard. Once it had made its decision it was entitled, in the interests of good administration, to draw a line under the Exeter proposal, whatever later financial information might have indicated, unless there was good reason to reconsider it.

The Boundary Committee is of the opinion that it can only advance a single draft proposal for consultation. That is most clearly evident in the July Report itself, where it is said explicitly that the Boundary Committee has no power to consider a range of potential options (paragraph 2.22, quoted earlier). The internal documentation of the Boundary Committee, referred to above, suggests that this has been something of a straightjacket on its activities. From the mid 2008 discussions there is more than a hint that the Boundary Committee may have liked to have advanced for consultation two unitary proposals for Devon. It would be going too far on the basis of informal minutes to conclude that the Boundary Committee would have placed two unitary patterns on the table in the absence of the interpretation it has placed on its statutory powers. In the result what the Boundary Committee did was to set out in the Report a further pattern which it said, in its judgment, might also meet the five criteria and which consultees might have in mind when commenting on the alternative draft proposal. As set out in the Report this was the idea of a unitary authority for Exeter and Exmouth on the one hand and a unitary authority for the remainder of Devon, on the other (excluding the existing unitaries of Plymouth and Torbay).

The Boundary Committee’s submission, that only a single draft proposal is possible, is grounded in the statute. Section 5 of the 2007 Act provides that the Boundary Committee may provide the advice requested, and where it does advance that advice it may also, if it thinks appropriate, make “an alternative proposal” to the Secretary of State: section 5(3)(c). Section 5(5) provides that in section 5(3)(c) the words “an alternative proposal” mean

“(a)

a proposal that there should be a single tier of local government for an area that –

(i)

is, or includes, the whole or part of the county concerned; and

(ii)

is specified in the alternative proposal; or

(b)

a proposal consisting of two or more proposals that are within paragraph (a) (and are not alternatives to one another).”

The use of the singular “alternative proposal”, is repeated in other consequential provisions, for example, sections 5(7) and 6(4). Although section 6(c) of the Interpretation Act 1978 provides that words in the singular include words in the plural, that only applies absent a contrary intention: see Bennion, Statutory Interpretation, 5^th ed, 579-580.

Here the Boundary Committee discerns a contrary intention in section 5(5)(b) of the 2007 Act, which contemplates plural proposals. That section is itself a definition section which, in the Boundary Committee’s view, emphasises the point. An express definition of an alternative proposal to mean two or more proposals in a particular situation argues against it meaning the same generally. The Boundary Committee also draws attention to the contrast with its power to make a recommendation under the Regional Assemblies (Preparations) Act 2003, where a recommendation must include at least two options for structural change in relation to each county area in the region: section 16(2). Moreover, the Boundary Committee points to its power in section 4(2)(b) of the 2007 Act, that it can give only advice specified in the Request. In this instance, the advice sought referred to “whether there can be an alternative proposal for a single tier of local government”: paragraph 11(a) and (b). In paragraph 11(c) the word used was “better” rather than “best” which, in the Boundary Committee’s submission, is also instructive. The Committee’s function of making recommendations is conditioned by guidance to which the Committee must have regard: section 6(2). The guidance in this case contemplated a single proposal: see paragraphs 3, 6 and 7. It is not easy to fit the identification of more than one proposal into the wording of the Request and Guidance. In terms of the statutory purpose, the Boundary Committee points to the advantage of clarity in being able to consult on one alternative proposal, indicating again a contrary intention against the singular including the plural in relation to the words “alternative proposal”.

While during the hearing I was attracted to the legal analysis of the Boundary Committee, I am not convinced, on reflection, that it is correct. The presumption under the Interpretation Act, and indeed the common law, is that unless the contrary intention appears words in the singular include the plural, and visa versa. In my view that presumption is not to be easily displaced given that its advantage in overcoming cumbersome verbiage is considerable. In any event, any contrary intention must be garnered not simply from one statutory provision but from a consideration of the legislation as a whole and the purposes behind it. Here the contrary intention is derived from section 5(5)(b). But section 5(5)(b) contemplates an alternative proposal consisting, for example, of two patterns of unitary government for the whole or part of the county such as the concept proffered for interested parties to bear in mind in the July Report, involving a unitary authority for Exeter and Exmouth, and a unitary authority for the remainder of Devon (excluding the existing unitaries of Plymouth and Torbay). In my view what section 5(5)(b) contemplates is that the Boundary Committee may make an alternative proposal consisting of two or more proposals which stand or fall together. They are a collective, not alternatives, and the effect of the Boundary Committee making an alternative proposal of this character is to require the Secretary of State to implement the two or more proposals in the collective and not just one of them. Use of the plural within the definition of “alternative proposal” in this very specific context has no bearing on whether the words should be read in general as including the plural. In other words, use of the singular is no indication that “an alternative proposal” does not mean more than one alternative proposal. The drafting of the Regional Assemblies (Preparations) Act 2003, specifically conferring on the Boundary Committee the duty to advance two proposals in relation to each county, tells us nothing about how the 2007 Act is to be interpreted. The two statutes are not in pari materia, the legislative contexts being different.

Moreover, in my view, the context of the 2007 legislation points towards the singular including the plural. If the Boundary Committee’s interpretation were correct it would confine it to advancing one alternative proposal when, in its expert judgment, more than one alternative proposal might have the merit of matching the five criteria, albeit in different ways. Potentially it would also mean serial consultation as each alternative proposal was advanced and, after the expense and disruption of consideration and consultation, rejected. A final factor is that in particular circumstances the Boundary Committee might decide that the calculation of the overall benefit of various alternative proposals would only be clear once possible associated arrangements have been more fully developed. Since that occurs at a later stage in the process, the sensible course in some circumstances might be to place more than one proposal before the Secretary of State so she could make a final judgment, in the light of what transpires in respect of associated arrangements. In summary the legislative purposes point in the direction of the Boundary Committee being able to advance more than one alternative proposal if, in its expert view, these meet the criteria.

As far as the Request and Guidance are concerned, these are subordinate to the statute and however they are couched, their language cannot cut down the powers conferred on the Boundary Committee in primary legislation. If the Boundary Committee considers that the appropriate course is to formulate and consult on two or more alternative proposals then, in my view, it is entitled to do that however the Secretary of State may have intended her request to be interpreted.

The Boundary Committee has therefore misdirected itself as to what it could publish, consult on and propose to the Secretary of State. What, then, follows? East Devon submits that since the Boundary Committee considered that there was a further pattern, which they considered alongside the Draft Proposal, the whole Devon exercise should be quashed so that it can be begun afresh. In its submission, if the single unitary and the two unitary options had been considered as equals, and consulted upon as equals, the outcome might have been quite different. The Boundary Committee may have chosen to publish the two options, and the response of the public in terms of support could easily have been different. The Boundary Committee cannot now rely on the way in which it published the further pattern – the Exeter/Exmouth and remainder of Devon pattern – because consultees were told merely to bear these in mind. The information available on this pattern was not as detailed as with the alternative proposal published, and the public would not have realised that they were being equally consulted on both, not least because the Boundary Committee did not think that it was what it was doing. Nor is it clear that the Boundary Committee would not have wished to publish and consult on other patterns.

Even if I did not regard the matter as premature in judicial review terms, this is a situation where as a matter of discretion it would not be appropriate for me to quash the Boundary Committee’s implementation of the Secretary of State’s request. The Devon exercise has incurred considerable time, effort and expense on the part of the Committee, local authorities in Devon and those who have responded to the consultation exercise. Were the matter to begin afresh, the public may be at a point of satiation, so that any new consultation would be relatively unproductive. In my judgment what must happen is that the Boundary Committee should consider with care whether it would be right to make further alternative proposals for Devon. If it were to decide that that course were appropriate, it would need to comply with the statutory requirements, including that under section 6(4) of consulting on such further proposals. However, the nature of complying with that obligation would be conditioned by what has already occurred. The Boundary Committee could decide, in its discretion, that responses already received were such that a more limited, further consultation was all that was necessary.

It will be recalled that the Boundary Committee was requested to advise whether there was an alternative proposal for unitary local government in Devon which “in aggregate” would have the capacity to deliver the outcomes specified in the five criteria. In East Devon’s submission, the Boundary Committee has misunderstood the nature of this concept. There are two possible approaches to whether an alternative proposal would “in aggregate” have the capacity to deliver the outcomes specified by the five criteria. One approach is that the five criteria have to be complied with in relation to each unitary authority proposed, the other is that they need only to be complied with across the set of proposals for an area, for example, two unitaries, or one new unitary local authority plus existing two-tiers elsewhere. In new guidance in early December 2008, the Secretary of State set out what she regards as the proper application of the concept. In the East Devon submission, the effect of this is that the Boundary Committee must reconsider their decision to publish and consult on the current draft proposal. They need to reconsider aggregation, properly construed, in relation to the two unitary patterns which they invited the public to have in mind. Moreover, aggregation applies not simply to the affordability criterion but to all the criteria including a broad cross section of support, leadership, neighbourhood flexibility and empowerment. Since the Boundary Committee’s consideration of its Devon proposal was erroneously premised, the entire consultation exercise may be said to have failed.

Consideration of the manner in which the Boundary Committee used the notion of aggregation does not persuade me that its approach was erroneous. For example, in the internal memorandum, with questions and answers, quoted earlier, the Boundary Committee said, under the heading “What does ‘in aggregate’ mean?”, that any unitary authority constituting an alternative proposal had to be reasonably likely to meet all five criteria. “We understand this means that not all individual authorities need to meet all the five criteria.” The Report referred to aggregation without elaboration when describing the Request and in chapter 4, setting out the details of the draft proposal, the Committee said that it was satisfied that, in aggregate, the draft proposal had the capacity to meet the outcome specified in the criteria. There is no reference of aggregation in the discussion of the two further unitary patterns which the Boundary Committee wanted consultees to have in mind.

Certainly the report of the independent financial consultants approached the concept of aggregation in relation to affordability in terms which disclose that they addressed affordability in relation to each individual authority within a particular pattern. It seems that this approach provoked the new guidance of the Secretary of State in early December. In my view what must happen is that the independent consultants will need to re-evaluate the notion of aggregation in the light of the new guidance. If that produces a change in analysis then I accept the East Devon submission that that would require a further period for consultation. The consultees need an opportunity to comment on the material on the basis of the correct approach to aggregation. Of course all this is premised on the basis that the Boundary Committee decide, in the light of what I have decided is their power to advance more than one alternative proposal, that they wish to adopt this course in relation to Devon. At the present, the only draft alternative proposal on the table is a proposal for one unitary authority for the area. Thus there is no issue of looking at more than one authority and considering whether they, in aggregate, meet the five criteria.

In light of the East Devon submissions I have accepted that my consideration of consultation in the Breckland case needs refinement. However, that has no impact on remedy in the present case. As far as the issues of affordability and status quo are concerned, I see no reason to disavow the approach adopted in the Breckland case. An important point not developed in argument in Breckland concerns the power of the Boundary Committee to advance more than one draft proposal. In my judgment, the Boundary Committee is authorised by statute to do that, and has been under a misapprehension as to its statutory power in that regard. It needs to reconsider whether it wishes to advance more than one alternative proposal in relation to Devon. If it decides to do that, it must address its obligation of public consultation in that regard. In doing so it will, within its discretion, carefully consider what has already happened. If it decides to advance more than one draft pattern of unitary local government for Devon, and one of these is along the lines of what it invited consultees to have in mind (the Exeter/Exmouth and the rest of Devon patterns) it will then need to consider whether this meets the criteria “in aggregate”. It will do that in line with the meaning of that concept as set out in the new December guidance. In my view, however, any challenge on these grounds is premature. The Secretary of State has extended the deadline for the provision of advice until mid February, and this may enable the Boundary Committee to comply with its statutory duties. There is no reason for me to reconsider the view I adopted in Breckland that this is not one of the exceptional cases where prematurity does not preclude remedy.

In a letter of 25^th September 2008, setting out East Devon’s formal response to the July Report, Councillor Randall Johnson, the leader of East Devon council, ventilated the various objections which her council had. I have referred to some of these earlier. However, she also highlighted what she described as the short term nature of legislative and policy approaches to local government. The current fashion, as I understand her to say, is for unitary patterns, but that may not last, just as other initiatives for local government have had a relatively short shelf life. She also identified the redundancies which may occur if the alternative proposal were implemented, which could be concentrated in the more disadvantaged rural areas of Devon. In a significant passage Councillor Randall Johnson wrote:

“[Leadership] brings with it an understanding or acceptance that concerns are shared and understood and that the leaders are not so far removed from those that they govern that a sense of alienation and disempowerment or irrelevance is experienced. On this basis it is my genuine belief that a unitary County Council would be too big and too remote to provide effective leadership …”

In my view all these matters deserve the closest attention of both the Boundary Committee and the Secretary of State. For East Devon, Councillor Randall Johnson is in a sense the most important consultee, elected by her constituents, and then by her colleagues to be leader of the council. I hasten to add that there is no reason for me to think that her response will not attract that attention. But I make these remarks because of what I said at the beginning: this is an area where legal sensitivity to meaningful consultation is heightened – the future of local, representative assemblies is at stake.