Robin Murray & Co, R (on the application of) v The Lord Chancellor

This is the judgment of the court.

Following a review of court buildings throughout England and Wales, in a decision announced on 14 December 2010, the Lord Chancellor decided to close a number of county courts and magistrates’ courts. In these proceedings, launched on 8 March 2011, the claimant firm seeks to challenge the decision to close the Sittingbourne Magistrates’ Court. The principal grounds upon which the decision is challenged relate to the way the consultation exercise preceding the decision was carried out. Mr Clegg QC, on behalf of the claimant, also submitted that the Lord Chancellor’s decision that the disabled facilities at Sittingbourne were worse than those at Medway (one of the courts to which Sittingbourne work was to be transferred) was perverse and failed to give proper consideration to his duty under section 49A of the Disability Discrimination Act 1995.

On 14 March 2011 Mr Justice Mitting ordered that the parties submit written proposals for a full hearing if permission was granted. The parties proposed that there should be a “rolled up” hearing and submitted a consent order to this effect with proposed directions. In the light of that, on 8 April, Mr Justice Beatson made Directions for the case to be listed for a “rolled up” hearing before a Divisional Court. Accordingly we must consider whether to grant permission to pursue the application, and if we do, determine the application on its merits.

At about the same time as these proceedings were instituted, two challenges to decisions to close magistrates’ courts in Wales were filed. The three cases were not listed to be heard together because, while the general policy background is the same, the position of the courts concerned and the grounds of challenge differ. We heard the challenge by the Vale of Glamorgan Council to the decision to close the Barry Magistrates’ Court in Cardiff on 8 June, also on a “rolled up” basis. Our judgment in that case ([2011] EWHC 1532 (Admin)) is being handed down at the same time as this judgment. In the third challenge, to the decision to close the Cardigan Magistrates’ Court, permission was refused on the papers, and, although the application was renewed to an oral hearing, it was withdrawn shortly before the hearing.

Courts are established and maintained under the Courts Act 2003. Section 1 places a general duty on the Lord Chancellor:

“To ensure that there is an efficient and effective system to support the carrying on of the business of … magistrates’ courts.”

Section 3 is headed “Provision of Accommodation” and sub-section (1) is as follows:

“The Lord Chancellor may provide, equip, maintain and manage such court houses, offices and other accommodation as appear to him appropriate for the purpose of discharging his general duty in relation to the courts.”

These are therefore broad and general powers. They neither require any consultations before court houses are opened or closed, nor do they seek to identify the considerations which the Lord Chancellor must take into account when making such decisions.

Between 2005 and 2009 the work in county courts and magistrates courts has reduced. In the case of magistrates’ courts the reduction was by about a third. Since 2009 successive Governments have sought to reduce the cost of the Court Service by rationalising the court structure, closing under-utilised courts and courts with inadequate facilities, and transferring their work elsewhere.

Before the start of the 2010 Spending Review Her Majesty’s Court Service (“HMCS”) commenced a Court Estates Review Programme. The consultation was launched on 13 October 2009 and, on 18 March 2010, prior to the General Election of that year, it was announced that some twenty magistrates’ courts would be closed. This still left 330 magistrates’ courts in operation. This was considered to be still too many and the location and number did not reflect the changes in population and transport and communication links over the years. Those considering policy also took account of the adequacy of the facilities for court users at individual courthouses.

Following the General Election in 2010, further courts were identified for potential closure. The Lord Chancellor considered that since public finances were under pressure it was imperative to eliminate waste and reduce costs. It was his view that this could be achieved without compromising the efficiency of the Courts’ Service, and whilst still ensuring that a court would be within reasonable travelling distance of those using the court.

On 23 June 2010 a consultation exercise throughout England and Wales was announced by a written Ministerial Statement in Parliament. Sixteen consultation papers were published for the fifteen areas of England and for Wales. In total it was proposed to close 103 of the 330 magistrates’ courts and 54 of the 219 county courts. The specific consultation document with which we are concerned in this case is the Proposal on the Provision of Court Services in Kent, Surrey and Sussex. Insofar as it concerned the magistrates’ courts in Kent, it contained a proposal for the closure of magistrates’ courts at Sittingbourne and Ashford.

The consultation period ended on 15 September 2010. In total, there were over 2,500 responses to the sixteen consultation papers. Twenty responses were made on a national basis. There were 238 responses to the consultation paper on Kent, Surrey and Sussex. Ten were concerned with the whole area, and the remainder with either individual courts or courts in one of the three counties. Forty-nine responses concerned the Sittingbourne Magistrates’ Court. Of those, only three supported the proposal to close that court: forty-six opposed it.

After considering the responses to the Consultation Papers, the government decided to close a total of ninety-three magistrates’ courts, including the Sittingbourne Court, and forty-nine county courts. The decisions were announced in Parliament on 14 December 2010.

The nature of the concerns which motivated the consultation exercises were identified in the section of the Kent, Surrey and Sussex Consultation Paper dealing with HMCS’s national estates strategy in the following way:

“HMCS is committed to providing a high quality court service within a reasonable travelling distance of the communities that use it, while ensuring value for money to the tax payers.

HMCS currently operates out of 530 court houses – 330 magistrates’ courts, 219 county courts, and 91 Crown court centres. However, the number and location of these does not reflect changes in population, work load or transport and communication links over the years since many of them were opened. This has resulted in some courts sitting infrequently and hearing too few cases. Some buildings do not provide suitable facilities for those attending or are not fully accessible for disabled court users. A number of magistrates’ courts do not have secure facilities for prisoners. Other agencies with whom we work across the justice system are also put under strain by the need to work at a number of different courts in the same area, some of which are in close proximity to each other.

When public finances are under pressure, it is vital we eliminate waste and reduce costs. This consultation sets out how we believe we can best meet the justice needs of the communities in each area and invites comments on whether work from the courts we propose to close could be moved to nearby courts which have sufficient capacity and, in the majority of cases, better facilities. By using these courts more efficiently we hope to save public money while also improving the services we provide for court users.” (page 3)

The document goes on to say that court users should not have to make excessively long or difficult journeys, but that this was not the sole or even the primary concern of the proposed changes. It then added this:

“The speed of case, outcome, the quality and efficiency of the service we provide and an environment which commands respect for the justice system and the safety and comfort of court users, are much more significant to delivery of effective local justice across the communities in England and Wales.” (page 4)

The paper identified a number of principles which were to inform the decisions on closure. These included the aim of improving utilisation to at least 80%; to ensure access to court so that a majority of the public would be within a 60 minute commute of their nearest court by public transport; to move towards larger courts; and to provide greater flexibility of criminal and civil courts with tribunal hearing centres.

The Kent, Surrey and Sussex Consultation Paper noted that there were ten magistrates’ courts in operation in Kent but that their location did not reflect the changes in population, workload or transport and communications since they were originally opened. It was alleged that the service was not efficient and the proposal to close the Sevenoaks and Ashford courts was said to enable HMCS to “make better use of the remaining estate and significantly reduce costs both to HMCS and other agencies within the criminal justice system”. More specifically, with respect to the Sittingbourne Magistrates’ Court, it was proposed to transfer the work to Medway Magistrates’ Court (which is in Chatham) and Canterbury Magistrates’ Court where there would be sufficient court rooms to take the relevant work.

As to accommodation, it stated:

“Sittingbourne is a converted Victorian building and has three court rooms. The building was refurbished over 10 years ago but has a confusing layout of corridors and small ancillary rooms.

Full compliance with the Disability Discrimination Act (DDA) is unachievable due to the nature of the building.

The standard and facilities of this accommodation now falls short of the minimum requirement for the provision of services expected by our customers and its suitability as a court house is no longer viable.” (page 11)

The Consultation Paper also identified (page 11) the additional distances involved in moving from Sittingbourne to Canterbury and Medway respectively, the staffing implications and the cost implications. As to the latter, it was noted (page 12) that the operating cost of the Sittingbourne court (excluding staff and non-cash costs) was just in excess of £136,000 in 2009/2010, and that the closure would remove the need to invest in maintenance, saving around £195,000.

We have stated that only three of the forty-nine responses about the Sittingbourne court supported the proposal to close that court. The response of the Senior Presiding Judge was on a national basis but dealt with Kent, Surrey and Sussex at pages 58 – 61. Its conclusion about the Sittingbourne court, at page 60, was that “further work is required before a decision is taken to dispose of this relatively busy court, which serves a deprived community”.

The Senior Presiding Judge reached this conclusion in the light of a number of factors. These included concerns about moving some of the Sittingbourne work to two courts at Chatham which did not have a dock and the failure to consider travelling time to Chatham and Canterbury from outlying areas, in particular from the Isle of Sheppey, an area in the lowest 5% of socially deprived areas with a high proportion of residents on benefit and without access to private travel. Travel by public transport from the Isle of Sheppey to Chatham could take up to two hours and involve three changes. It is stated that “it is likely that such a journey will increase non appearance and lead to further issue of warrants”. It is also stated that the extent of Disability Discrimination Act problems “is not clear” and that it was understood that a defendant was sent to Sittingbourne as his wheelchair could not gain access to the cells at Chatham, and that a disabled magistrate was transferring to Sittingbourne because her wheelchair could not be accommodated at Chatham.

When the Lord Chancellor announced the closure decisions on 14 December 2010 he also published three documents dealing with each of the sixteen consultation exercises. These were; a “Response to Consultation” document containing the decisions taken as a result of the consultation, an Impact Assessment (“IA”), and an Equality Impact Assessment (“EIA”).

There are overlaps between the contents of the documents concerning Kent, Surrey and Sussex and a certain degree of repetition, but, because their focus is different, we set out the material parts of each document. The IA stated:

“The policy objective of the court closure programme is to achieve a more efficient use of public resources and better value for money for the taxpayer by increasing magistrates’ …. courts utilisation levels, while at the same time ensuring that access to the court system is maintained.

In addition to the ‘do-nothing’ (base case) option, one other option was outlined in the consultation. The selection of particular magistrates’ and county courts listed for closure under this option was informed by court utilisation levels and other factors measuring the cost effectiveness of each court. The list of candidate courts was then revised to account for local justice, compliance with accessibility, (including travel time to the next nearest court) and the standard of court facilities.” (page 1)

and,

“[T]he impact on travel times by public transport is a key concern as the most disadvantaged in society are likely to travel by public transport…. [In Kent, Surrey and Sussex] 82% … of the population would be within 60 minutes of magistrates’ … courts … following these closures and representing a fall of 3% … fall for [magistrates’ courts].” (page 10)

The EIA stated (page 10) that the Sittingbourne court “is a converted Victorian building ….refurbished over ten years ago but [with] a confusing layout of corridors and ancillary rooms”. “Full compliance with the DDA is unachievable due to the nature of the building” and “the standard and facilities now fall short of the minimum requirement for the provision of services expected by our customers and its suitability as a courthouse is no longer viable”.

As to facilities for those who with disabilities, after recording (page 13) the views of some respondents that the facilities are better at Sittingbourne particularly for defendants and magistrates using wheelchairs, and that a disabled magistrate had transferred there, the EIA stated that “the disabled facilities are no better in Sittingbourne than in other courthouses in the area”. It stated (at page 14) that DDA work had been carried out at Medway Magistrates’ Court to assist disabled magistrates, and arrangements have and can be made for defendants who use wheelchairs to be produced at that court. It also referred to the inadequacy of facilities for witnesses at Sittingbourne and the availability of disabled parking at Canterbury.

The EIA noted (pages 11 and 12) that one of the main concerns of consultees’ was the effect on the lower socio-economic groups of increased costs of travel to Canterbury or Chatham and that much of the concern focuses on the poor wards on the Isle of Sheppey that are furthest from the two receiving courts. It stated (page 12) that “the Swale District which encompasses Sittingbourne is ranked 116^th out of 354 authorities in England based on the Index of Multiple Deprivation 2007” and includes areas which are “among the 20% most deprived in England” which “are mainly though not exclusively on the Isle of Sheppey”.

The EIA concluded (page 14) that the only adverse equality impacts of closing the Sittingbourne court “are likely to be around travel” but that those are “unlikely to have a severe impact on the local community” and that the positive impacts that will be derived from the closure of Sittingbourne “appear to significantly outweigh the impact of increased travel time for some court users”.

The decision in relation to Sittingbourne is contained in the Response to Consultation, “Proposal on the provision of court services in Kent, Surrey and Sussex”. This recognised (page 31) that court room utilisation in Sittingbourne had been high (82%) and well above the average (76.4%) for magistrates’ courts in Kent. Nevertheless, the conclusion was (page 32) that work could be transferred and there was sufficient capacity in Canterbury and Medway to take the necessary workload.

The conclusions with respect to accommodation/facilities and buildings figured significantly in the arguments before us. As to this, the response document states (page 32) as follows:

“Six respondents argued the disabled facilities are better at Sittingbourne than at other magistrates’ courts in Kent, particularly for wheelchair bound defendants and magistrates.

The North Kent Bench pointed out that if work is transferred to courts five and six at Medway Magistrates’ Court the use will be restricted to non-custody cases as these are not secure courts.

In response to the HMCS statement in the consultation document some buildings do not provide suitable facilities for those attending court. The Central Bench, arguing against closure, said ‘the assumptions and assertions made in the consultation document with regard to the design, layout and suitability of the Sittingbourne court house for use by all court users and in particular those with a disability are not valid.’

However, Victim Support commented that: ‘facilities for witnesses at Sittingbourne are unsuitable and that the closure of this court and transfer of cases would be beneficial for witnesses.’ ….”

The document then stated (page 32) that disability discrimination work was carried out at Medway to improve its facilities for disabled persons and that wheelchair bound magistrates could be accommodated in two courts at Medway. It was noted that both Medway and Sittingbourne had satisfactory video links, that Medway had two secure court rooms, and that interviewing facilities were better at Medway than at Sittingbourne.

It was recognised (page 33) that a number of defendants came from the Isle of Sheppey, which has some of the most deprived neighbourhoods in Kent and that Sheerness, Leysdown and Warden are high crime areas. The document also considered the additional travel time that would be involved for defendants, witnesses and others: see pages 33-34. It was recognised that a small number of users would have to travel for more than an hour and would have higher travel costs as a result of the closure, but it was stated that the impact of any extended journey times could be mitigated by staggering the lists.

The document then referred to two surveys which have figured in the course of the submissions to us. It stated:

“A local survey of defendants who attended Sittingbourne Magistrates’ Court in June 2010 showed that 20% came from Sittingbourne, 22% came from Faversham, 41% came from areas other than Faversham, Sittingbourne or Sheppey, and 17% came from Sheppey (all but 2 came from Sheerness).

We need to balance the impact that additional travel might have with the frequency with which most members of the public have to attend court and whether they have access to their own transportation. In July 2010 HMCS carried out research, through a Journey to Court Omnibus Survey into usage of court services and journey type. It found that 87% had not visited a court in the last five years. Of those who had attended court in the last five years, 65% used their own transport or were taken by a friend or family member. Only 18% of those surveyed used public transport.”

The estimated changes in public transport travel times were set out in an annex. Other aspects, including long term planning and certain specific responses made by those were opposed to closing the courts, were also considered. The ultimate conclusion, however, taking into account all of the relevant matters raised in the response was that the court should be closed.

As to the points made in the Senior Presiding Judge’s response, the document stated (page 35) that further work had been undertaken since the commencement of the consultation process including an Equality Impact Assessment, the local user survey and the HMCS Journey to Court Omnibus Survey to which we have referred. The document dealt (see [30]) with additional travel time.

Since the consultation it has been decided to transfer some of the Sittingbourne work to Maidstone and a number of the witness statements deal with difficulties perceived with this. A woman who lives on the Isle of Sheppey whose 13 year old son is a defendant in criminal proceedings stated it would take some two and three quarter hours to travel from her home to Maidstone by public transport and the journey would involve three trains and a bus. A caseworker at the claimant firm deals with delay in re-listing a Maidstone case which had to be adjourned.

Before turning to the grounds of challenge, we indicate who gave evidence and summarise the relevant law applicable to this case. Evidence on behalf of the claimants was given by 17 individuals. There were five statements by solicitors, seven by magistrates, and three by retired magistrates. Two of the statements are by a solicitor employed by the Crown Prosecution Service who has cerebral palsy and a magistrate who has muscular dystrophy. Their statements deal with the facilities available at the Sittingbourne and Medway courts for those with limited mobility. The remaining two statements are those referred to at [34].

The evidence on behalf of the Lord Chancellor consists of the statements of Julia Eeles, HM Courts and Tribunals Service’s Area Director for Kent, Surrey and Sussex and the senior officer responsible for the courts in Kent; Sean Palmer who, from April 2010 to March 2011 was the lead official in the Ministry of Justice on the Court Estate Reform Programme; Mark Veale, the Regional Estates Manager of HM Courts and Tribunals Service for the South-East, who gave building advice to the relevant Area Directors about the courts which had been short-listed for potential closure; Andrew Hyland, an official in the Court Estate Reform Programme; and Malcolm Dodds, the Justices’ Clerk for Kent.

There is no real dispute as to the relevant law applicable in this case. It can be summarised as follows:

We turn to the grounds upon which the decision to close the Sittingbourne court is challenged. The first ground alleges that the Lord Chancellor failed to provide adequate information to enable the consultees to give proper responses. The second ground concerns his consideration of disabled facilities at Sittingbourne and at Medway. It is submitted this was perverse and failed to give proper consideration to his duty under section 49A of the Disability Discrimination Act 1995.

This ground can be broken down into three heads. First, relying on the Capenhurst case, it is said that the Lord Chancellor ought to have provided information about the criteria he was employing to assess the adequacy of court facilities and buildings. Secondly, he ought to have made available two surveys which he relied on when making his decision to close Sittingbourne. Thirdly, one of those surveys was a national survey and ought not to have been considered at all when assessing the desirability of retaining the court in Sittingbourne because the local circumstances made it irrelevant.

This argument has taken on a different hue as the application has progressed. When the application was first lodged, the complaint was that no criteria had been adopted by the Secretary of State and that the exercise was too subjective. After the claimant had seen the witness statement of Mr Veale, that particular challenge was not sustainable. Mr Veale (first statement, paragraph 33) identified five criteria which have been adopted nationally to assist in determining the question of adequacy. They are:

Accordingly, contrary to the applicant’s understanding, there were objective criteria in place. The complaint then was that the Lord Chancellor had not referred to the national criteria in the Consultation Document. However, in the course of his oral submissions to us, Mr Clegg QC realistically accepted that although it would have been desirable to have spelt these out, they were obvious criteria by which the adequacy of the court would have been assessed. This is supported by the fact, relied upon by Mr Grodzinski QC, that apparently none of the 2,500 consultees who responded to the sixteen consultation papers, including the claimant, had expressed any concern that the criteria for assessing adequacy had not been disclosed or were difficult to discern.

The focus of this ground then shifted. Having accepted that the national criteria were obvious, Mr Clegg then submitted that the Lord Chancellor ought to have informed consultees of how the criteria would be weighed or at least to have identified the sub-categories by which the criteria would be assessed. Mr Veale’s evidence (first statement, paragraph 34) was that, to ensure there was a consistent approach for the South-East courts, he arranged a “bench-marking” meeting. That meeting took place on 28 September. At it he and the three lead Area Estate Managers discussed each court and make their final assessments. He stated that their assessment of Sittingbourne was:

Mr Clegg contended that consultees ought to have been notified that the factors which Mr Veale stated had led those at the “bench-marking” meeting to conclude that the court at Sittingbourne was inadequate were in play. He gave by way of particular example the fact that the committee had treated as a negative feature the fact that at Sittingbourne that there were no separate entrances to the court, only one shared entrance. He argued that this was true of virtually all magistrates’ courts in Kent and elsewhere and the consultees ought to have had the chance of making that point.

In our judgment, there are a number of difficulties with this argument. First, the particular factors considered by Mr Veale and his colleagues at the “benchmarking” meeting were not universal across England and Wales but were adopted locally in the South East region. They were factors which the particular group Mr Veale convened and chaired considered to be relevant. Additionally, as Hickinbottom J pointed out during the hearing, the factors which cast doubt on the adequacy of the assessment were only the negative factors, those at the “benchmarking” meeting not necessarily identifying all the potentially relevant factors for assessing adequacy. Moreover, and importantly, the Lord Chancellor could not have disclosed these factors when the Consultation Document was initially sent out because they had not at that stage been identified; and indeed they never were identified by him.

In theory consultees could have been informed of the factors later, but we do not consider there was any obligation to do so. The matters considered at the “bench-marking” meeting had emerged as a result of the consideration locally by Courts Service officials of points which had arisen during the consultation process. For example, Mr Veale stated (first statement, paragraph 5) that, following specific representations which arose from the consultation process, he conducted additional analysis of the buildings at Sittingbourne and Medway, “including assessing their accessibility to and suitability for use by people with disabilities” and reported to the Kent, Surrey and Sussex Area Management team headed by Julia Eeles. In that sense those matters were items which arose as the relevant officials within the Court Service developed their own understanding in the light of responses received during the ongoing consultation process and fed material to those in the Court Service responsible for formulating policy and making decisions.

In general, and save in exceptional cases which we discuss below, it is not necessary for a public body engaged in a consultation process to circulate the submissions of those who respond to the consultation to all others who have responded to it: see R (Smith) v East Kent Hospital NHS Trust [2002] EWHC 2640 (Admin) at [45] and [57], and R v Secretary of State for Wales, ex p Williams [1997] ELR 100. Note also, albeit in a slightly different context, the observation of Maurice Kay J, as he then was, in R (Medway Council) v Secretary of State for Transport [2002] EWHC 2516 (Admin) at [26] that “consultation is not negotiation”.

What of matters that emerge internally during a consultation? While they cannot be equated with matters that emerge as a result of external responses, there are some similarities. To require a public body engaged on a consultation exercise routinely to circulate information about the way its consideration of the matters before it is developing and afford an opportunity for further responses has the potential to lead to a never-ending dialogue and to be inimical to the principle that there must come a time when finality has to be achieved. It is clear from the decisions in Bushell v Secretary of State for the Environment [1981] AC 75, at 102, and Edwards v Environmental Agency [2006] EWCA Civ. 877, at [103], [2009] UKHL 22 at [44] that there is in general no obligation on a minister to communicate advice received from officials or internal material or information to consultees. There may, as we have stated, be exceptional cases, for instance, where the matters which have emerged lead the public authority to wish to do something fundamentally different from the proposals consulted upon, or fairness otherwise requires further consultation on a matter or issue that has been thrown up. One such situation may be where the internal material undermines the value of the responses that have been made to a consultation. We are, however, satisfied that this is not one of those exceptional cases.

In our judgment the question of the adequacy of a courtroom cannot be defined with the kind of precision which Mr Clegg is suggesting; the factors bearing upon it will vary from court to court. It is a perfectly cogent position for the Lord Chancellor to take the view that it is for a consultee to identify those features which he or she considers will be relevant (or irrelevant) when assessing the adequacy of the court.

We should add (see the suggestion at [43]) that there is no evidence at all that the Lord Chancellor treated the fact that Sittingbourne had only one entrance as a factor to count against it.

The complaint here is that the Lord Chancellor should have notified the consultees that he had two reports (the local survey of defendants who attended Sittingbourne Court in June 2010 and the national Journey to Court Omnibus Survey) which were potentially influential in his decision. It is plain from the response document containing the decision (see [31]) that the national survey in particular weighed with the Lord Chancellor when deciding to close the court at Sittingbourne.

For reasons we have given, there is no general duty on the Secretary of State to provide such information unless fairness demands it. As Edwards v Environmental Agency shows, this will be exceptional and will only arise where the information undermines the value of the responses that have been given. We do not accept that fairness required it here. The national report was commissioned in July 2010, after the start of the consultation period. It was commissioned to obtain information about the frequency with which people visit a court and the extent to which they use public transport to do so: see Sean Palmer, statement paragraph 15; Andrew Hyland, statement paragraphs 13 – 14. It was concerned with the overall population rather than those who may be considered to be likely to visit courts regularly. It did not lead to a change in the thinking of the Lord Chancellor. Moreover, there would have been little by way of response that a consultee could have made, save perhaps to say, as Mr Clegg submits the consultees in Sittingbourne may have wanted to say, that information reflecting the national position is of limited value when the decision to be taken involves the choices to be made when closing a local court. However, the lack of any opportunity to make that obvious point did not begin to undermine the relevance of the responses which these consultees did make.

The position is even stronger with respect to the local survey. It cannot be said to be irrelevant. It was (see Julia Eeles, statement paragraph 12) prepared as part of the consideration of the response to the consultation in the form of a paper examination of cases completed in June 2010 and checking the addresses of defendants. It shows (see [31]) the percentage of people who attended the Sittingbourne Court from the different areas served by that court. It did not lead to a change in the thinking of the Lord Chancellor. Rather, it provided objective evidence to support the Court Service’s position in the Consultation Paper that, while there is a travel impact, it affects only a minority of court users.

Mr Clegg went so far as to submit that the national survey was irrelevant to the situation in Sittingbourne and ought to have been ignored. As Mr Grodzinski submitted, this amounts to contending that it ought to have no weight at all. That is not a sustainable argument. It was clearly permissible for the Lord Chancellor, conducting a national consultation exercise, to commission a survey on a national basis. The report provided some material which informed the closure exercise generally, and it was never intended to do more than that. In our judgment, it plainly had some relevance. Thereafter it was for the Lord Chancellor to decide how much weight it should be given. Moreover, the argument that the national survey was irrelevant relied on the fact that the relevant local area, in particular the Isle of Sheppey, was a deprived area. But the IA, the EIA, and the Response to Consultation, show clearly that the Lord Chancellor was aware of and took into account the social conditions in the area: see [22], [25] and [30].

Some respondents (including the claimant and the Central Kent Bench) considered that the facilities at Sittingbourne for disabled people were better than those at Medway and the statements of some witnesses were to the same effect. But Mr Veale conducted assessments of the facilities for disabled people in May and June 2010 and, as a result of the responses to the consultation, again in October. His assessment was that the facilities at Sittingbourne were worse than those at Medway. The EIA undertaken by the Court Service, it may be in the light of his assessment, reached the same conclusion.

As to the duty under section 49 to pay due regard to the need to eliminate discrimination against disabled people and to promote equality of opportunity for them, Mr Clegg questioned whether the EIA analysis was sufficiently rigorous because its assessment was based on no evidence obtained by its authors but was merely culled from the responses to consultation. Initially he also submitted that in order to show “due regard” the defendant should have consulted disabled court users. However, he resiled from that submission in two stages, suggesting first that there should have been further “engagement” with those who had responded to the Consultation Paper, and then that the “engagement” should have been with the representatives of disability groups.

We reject both these submissions. The submission that the assessment was based on no evidence takes no account of Mr Veale’s statement (see [45]) that additional analysis was conducted on the buildings in the light of the responses to the Consultation Paper. The second submission does not reflect the approach of the court to the section 49 duty. The authorities show that the duty to have “due regard” does not require a particular substantive outcome and the weight to be given to the various factors considered by the public authority is only reviewable if its assessment is Wednesbury unreasonable: R (Brown) v Secretary of State for Work and Pensions [2008] EWHC 3158 (Admin) at [36] and [82]; R (Baker) v Secretary of State for Communities and Local Government [2008] EWCA Civ. 141 at [31] and [34].

In the light of the evidence, in particular that of Mr Veale, and the contents of the EIA, it cannot be said, on the basis of the views of respondents and witnesses who disagreed, that the Lord Chancellor’s decision was Wednesbury unreasonable or failed to take account of relevant considerations, or failed to comply with the duty under section 49. Comparative questions of adequacy are ones on which reasonable people may differ. It was, for instance, suggested by Mr Grodzinski that the evidence adduced on behalf of the claimant focussed on the position of accessibility to courts and custody areas rather than to toilets and staff areas on all floors. Moreover, there is a conflict in the evidence, for instance as to the accessibility of court 6 at Medway to a magistrate who uses a wheelchair. In the light of these factors, we have concluded that there is nothing in this point.

It is understandable that closure of local court facilities raise serious concerns amongst the professionals who work at or use a court, other court users, and local residents. The principle of local justice is an important one. We consider that the issues raised by the claimant are important, and deserved ventilation at a substantive judicial review hearing. There has now been such a hearing. We have, however, concluded that, for the reasons we have given, the Lord Chancellor’s decision was lawful. Accordingly, while we grant permission, this application must be dismissed.