Clarke, R. (On the Application of) v Birmingham City Council

This is the hearing of Mr Clarke's claim for judicial review of a decision of the Cabinet of the defendant council made on 24 May 2019 to confirm its decision of 27 March 2019 approving an amended capital spending budget that included provision of some £19m (out of an anticipated total of £31m over three years) to fund the retrofitting of sprinkler systems to all the tower blocks owned by the Council, in the wake of the fire at Grenfell Tower in London.

Mr Clarke considers that the decision to fit sprinklers is a waste of public money that could be better spent elsewhere, on the grounds, summarised broadly, that the Council has not investigated in any detail whether the Birmingham blocks are subject to any material risk of a catastrophic fire such as occurred at Grenfell Tower (he contends they are not) or for any other reason, such that any additional contribution to reduction of risk of such a fire that might be achieved by fitting sprinklers, over and above the protection afforded by existing measures already incorporated into their design and construction, would be worth the substantial additional cost involved.

He points out that although Birmingham has had a large number of such tower blocks in place for many years, during which time there have been numerous fires in individual flats, the existing fire protection measures have always been sufficient to contain those fires and prevent them spreading to the whole block or any substantial part of it, and contends there is no reason to think this will not continue to be so in future. In his view, the decision to fit sprinklers was a panic response by politicians keen to be seen to be doing something in response to the Grenfell tragedy, when a more considered evaluation would have shown that it was not necessary or justified.

The decision challenged was preceded by a number of other relevant events:

When the Cabinet met on 24 May 2018 it considered a document entitled "Executive response to 'Call-In' [of] the decision made by Cabinet on 27^th March 2018" (p 153). There was a discussion between the members of the Cabinet, the relevant sections of which are transcribed in the bundle at p 159, at the end of which the Cabinet unanimously resolved to confirm the decision it had taken on 27 March. It is that confirmatory decision that is now challenged.

Permission was initially refused on the papers by HHJ McCahill QC on 26 October 2018. However upon renewal at an oral hearing on 11 February 2019 Andrews J granted limited permission to proceed in the following terms:

“1.

Permission is granted, limited to the following grounds:

Ground 1

In reaching its decision of 24 May 2018, the Defendant's Cabinet failed to consider and/or take into account all relevant factors that might weigh against the decision, in particular the matters that were raised in the Scrutiny Report and itemised in paragraph 41 of the Claimant's Statement of Facts and Grounds, and the alternative approach identified in paragraph 3(b) of the Executive response to the 'Call-In' dated 24 May 2018

Ground 2

Alternatively, if and so far [as] the Cabinet did take those matters into account in reaching its decision, it failed to give any or any sufficient reasons for rejecting those points, or for finding that they were outweighed by other relevant factors…

3.

Permission is refused on all other grounds including, for the avoidance of doubt, irrationality, Wednesbury unreasonableness, taking irrelevant matters into account, breach of article 8 ECHR and procedural unfairness (failure to consult). ”

The Scrutiny Report referred to in this order is the note of the consideration by the Scrutiny Committee mentioned above. That document notes the reasons for the request made by Councillors Henley and Leddy, by reference to the list of permissible reasons to call in a decision, as follows:

“1.

The decision appears to be contrary to the Budget or one of the 'policy framework' plans or strategies - the decision to spend the money on sprinklers leads to a £7 million overspend on the budget;

5.

The Executive appears to have overlooked some relevant consideration in arriving at its decision - the scientific evidence supports the case that Birmingham's tower blocks are already safe, in accordance with Building Regulations, so the money could be better spent elsewhere;

7.

The decision appears to be particularly 'novel' and therefore likely to set an important precedent - the proposal to retrofit sprinklers is novel, particularly as the requirements of the sprinkler system may render other fire protection methods (e.g. compartmentalisation) invalid;

9.

The decision appears to give rise to significant legal, financial or propriety issues - an additional spend of £31 million is significant;

11.

The decision appears to give rise to significant issues in relation to a particular district - the issue is one of significance for Brandwood ward, where there are a large number of tower blocks, many over 50 years old that have many issues (relating to size and maintenance).”

Paragraph 41 of Mr Clarke's statement of grounds set out these points, and certain others which are noted to have been points made in discussion by members of the Scrutiny Committee as follows:

The "alternative approach" referred to in Andrews J's order was that which had been mentioned by the Scrutiny Committee, i.e. the possibility of considering the needs of each tower block individually. In the context of the Scrutiny Committee's request, it seems to me that is to be read as suggesting that there should be consideration in respect of each tower block whether fitting of sprinklers was justified at all in its particular case, not just subsidiary questions such as when and how they might be installed.

In his skeleton argument, aiming at the first of the grounds permitted by Andrews J, Mr Clarke set out 12 matters that he identified as material matters that might have weighed against the decision to retrofit sprinklers but which he said had not been addressed at all either in the document before the Cabinet on 24 May or in the discussion at that meeting. I will not set them all out. A number of them were matters that he had raised himself in an email sent on 25 June 2017 after the initial Cabinet decision had been publicised and in a letter before action threatening a judicial review claim sent on 20 April 2018. They included:

Mr Clarke also makes the point that, as he said Andrews J had observed in granting permission, all of the matters set out in the Executive Response document submitted to the meeting on 24 May were arguments in favour of fitting sprinklers and not points that might have been made against such a decision.

The Council's position in response is, in summary:

I take the first two points together. Mr Clarke submitted that there had been no decision to install sprinklers in 2017 and the document referred to showed at most that

That said, I do not accept that all questions of the merits or value of the proposed spending ceased to be proper matters for discussion by councillors or executive officers at that point, or the specific objection that such matters were not ones that could properly be raised and discussed in connection with a later budget decision. Any budget discussion in the real world involves consideration of allocation of limited amounts of money between competing spending priorities, and is not simply a matter as Mr McLeod suggested of funding all the items the Council had previously decided to approve as its objectives. It must therefore be proper for councillors to raise issues as to the value to be achieved by a particular item of proposed expenditure and argue that, for instance, it was less desirable than some other objective such that resources should be switched away from it, or that it was not good value for money and so should not be funded at all in order to keep down total spending. This is as much true of a proposal to "adjust" a budget as of one to set a budget in the first place.

If such matters were legitimate for potential discussion on the initial consideration of the revised budget (in this case at the Cabinet meeting in March 2018) it seems to me they must have been legitimate matters to be raised by bodies such as the Scrutiny Committee in a "Call-in" request. Nor would such discussion be academic; if hypothetically the Cabinet decided against funding a particular item, or to reduce the funding for it, council officers would not be able to pursue it except in accordance with the approved budget or to the extent they could properly reallocate expenditure themselves within that budget. In the context of a major item of expenditure such as this, if, as Mr Clarke would have hoped, the Cabinet on reconsideration had decided not to provide £19m in the capital budget towards sprinklers, it must be doubtful whether the project could have proceeded either at all or until a significant reappraisal of financial priorities had been carried out.

There is no doubt that the Cabinet's discussion on 24 May did not include specific consideration of the 12 matters that Mr Clarke puts forward as potential arguments against sprinklers, or even those of them that had by that date been identified by him as things he considered ought to be taken into account. Nor did it decide to commission an evaluation of these items, or of the more general consideration whether in the actual circumstances of the Birmingham blocks fitting sprinklers would lead to any appreciable increase in safety or, if it did, whether the extent of that increase would be worth the cost involved - the "value for money" issue.

Mr Clarke's argument under Ground 1 as permitted by Andrews J is that these matters were all "relevant" in law such that an error of law is committed if they are not addressed. He referred me to the decision of Carnwath LJ, sitting as a judge of the Administrative Court, in Derbyshire Dales DC v Secretary of State for Housing, Communities and Local Government [2009] EWHC 1729 (Admin) and to a passage

In fact I think the judgment in that case is against the proposition that Mr Clarke seeks to put forward. It must be borne in mind that it was a planning case, and therefore the discussion of whether particular matters were so important that any failure to consider them vitiated the decision took place against the background of the statutory nature of the planning process. The issue in that case was whether the authority was required to have regard to the potential that a particular development (wind turbines) could be sited at an alternative location. But the general principles can in my view be read across to a situation such as the one before me.

At paragraph 17, Carnwath LJ said this, following a citation from authority which I need not set out:

“… the words 'relevant or at least permissible' and 'relevant and indeed necessary' … signal an important distinction, insufficiently recognised in some of the submissions before me. It is one thing to say that consideration of a possible alternative site is a potentially relevant issue, so that a decision-maker does not err in law if he has regard to it. It is quite another to say that it is necessarily relevant, so that he errs in law if he fails to have regard to it.

18.

For the former category, the underlying principles are obvious. It is trite and long established that the range of potentially relevant planning issues is very wide… and that, absent irrationality or illegality, the weight to be given to such issues in any case is a matter for the decision-maker… On the other hand, to hold that a decision-maker has erred in law by failing to have regard to alternative sites, it is necessary to find some legal principle which compelled him (not merely empowered him) to do so…

23.

The principles by which a matter is to be deemed 'material' or 'relevant' have not been consistently stated in the cases or the textbooks. The passages from the Bolton MBC judgment … might suggest a relatively low threshold. It would be enough for the court to decide for itself that consideration of some factor … 'might realistically' have led to a different result. However that approach is not supported by the textbooks, nor, in my respectful view, by other authorities…

26 … Lord Greene MR in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 2 All ER 680 [said]:

"If in the statute conferring the discretion there is to be found expressly or by implication matters which the authority exercising the discretion ought to have regard to, then in exercising the discretion it must have regard to those matters. … What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that it is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision… (emphasis added)"…

28.

It seems, therefore, that it is not enough that, in the judge's view, consideration of a particular matter might realistically have made a difference. Short of irrationality, the question is one of statutory construction. It is necessary to show that the matter was one which the statute expressly or impliedly (because 'obviously material') requires to be taken into account

'as a matter of legal obligation'. ”

It is not enough, therefore, that it would have been permissible for the Cabinet to consider the "value for money" issues Mr Clarke raises, and would not be enough even if I were to conclude that if it had done so it might realistically have agreed with Mr Clarke's points to the extent that it would have arrived at a different decision and excluded or materially reduced the proposed budgeted expenditure. It would not be enough if I were to conclude that some, or even many, people might have taken the view that Mr Clarke does, apparently shared by at least Councillors Henley and Leddy, that sums of the order envisaged should not be committed without a detailed analysis of the costs and benefits realistically conferred. It must be shown that there was some express or implied legal obligation on the Council not to proceed unless this was done.

Mr Clarke does not point to any express legal obligation, however arising, on the Cabinet to take these matters into account or commission a report. He has not, for instance, referred to anything comparable to the Public Sector Equality Duty or obligations to obtain environmental assessments that would require councils in all circumstances to investigate matters relating to the value for money of proposals they are considering, or to commission any internal or external report dealing with such matters before committing themselves to expenditure.

Short of such an obligation, it is in my judgment generally for a decision taker to determine what matters are potentially relevant to be considered, and what weight is to be given to each of them. Any challenge to its decision would as Carnwath LJ noted at para 28 cited above, have to be on grounds of irrationality.

Against that background, if one considers what was before the Cabinet on 24 May, it was that the Scrutiny Committee's request that the Council should "carefully [consider] all the information and evidence available to assure itself that this large expenditure is wholly justified". The Scrutiny Committee did not put forward either one or a number of specific points that should be considered, but made a general request that the Council should investigate in more detail the evidential support for the potential benefits of sprinklers and any arguments that might go towards justifying or not justifying the expenditure.

What the Cabinet had to decide, therefore, was the question whether it should or should not enter into this more detailed analysis before proceeding to approve the budgeted expenditure. Mr Clarke's objection is in substance that the Council did not decide to conduct such an analysis, which implies that, as a matter of law, there could only ever be one proper answer to the question asked.

But that in my judgment is unsustainable. If it is assumed for present purposes that the Cabinet was obliged by its own procedural rules to address the question that had been put to it by the Scrutiny Committee in its "call-in" request, that cannot impose an obligation to answer the question in one particular way and actually conduct the analysis that the Scrutiny Committee had requested it to consider. In the absence of any express statutory obligation to consider such matters of detail, it is only if its decision not to do so could be considered to be Wednesbury unreasonable that it could be challenged. Mr Clarke however has been refused permission to bring a challenge on Wednesbury grounds.

Reading the transcript of the Cabinet discussion, it is in my view apparent that it does address the question asked. It could no doubt be said that much of the discussion is not particularly well structured, and some of the points made are not particularly coherent. But points were made about the statements made by Chief Fire Officers in London and the West Midlands that sprinklers ought to be fitted (such statements being sometimes described as "scientific evidence" and at other points as "expert advice"), about the possible lack of justification for a distinction between any new blocks in which sprinklers would be required by revised Buildings Regulations and older blocks in which they would not be required by law to be retrofitted, and about the Scrutiny Committee's concern that there had not been "a due process following scientific research to have got to [the decision to fit sprinklers]". The chair of the meeting put the matter to a vote with the concluding remarks "I would just reiterate that the advice from both the Fire Officer here in the West Midlands and indeed the Fire Commissioner in London is crystal clear, we cannot delay on this matter any further. So can I put the recommendation to Cabinet please, is that agreed?". There was then a unanimous approval.

The Cabinet therefore decided against instituting the detailed investigation that the Scrutiny Committee had requested it should consider, and which Mr Clarke would prefer it to have undertaken. It was in my judgment entitled to do so. It was a matter for its discretion whether the policy imperatives that it identified were outweighed by the advantages of longer or more detailed scrutiny of the balance between the safety benefits and the costs, and it plainly decided that they were not.

It follows that ground 1 as permitted by Andrews J fails. As to the alleged insufficiency of reasons, Mr McLeod submits that what the Cabinet was considering

But even if it is assumed in favour of Mr Clarke that there was an obligation in the present case to identify reasons sufficient for a citizen potentially interested in challenging a decision to be able to determine what had been decided and why, it is in my view clear that such a standard was met. The Cabinet decided not to embark on the more detailed analysis that had been suggested, because it considered that the reasons for proceeding without further delay identified in the "executive response" and referred to in the course of discussion outweighed the potential advantages of further investigation.

Mr Clarke does not agree with that decision. No doubt there might be others who would take the same view. But it was in my judgment a decision properly taken by the Cabinet in respect of which no legal error has been identified and the challenge to it must be dismissed.

In the circumstances the question whether there might realistically have been any different outcome does not arise. But in case the matter goes further I should say that if I had concluded that the Cabinet erred in declining to consider the "value for money" issue I would not have also concluded that doing so would not have made a difference. It may be, as Mr McLeod argued, that the Cabinet members at the meeting were minded to proceed regardless of what consideration might have led to. But it cannot be said, in my view, that if hypothetically they had decided to embark on a more detailed investigation, for instance by commissioning an expert report, that this could not have led to matters emerging that might have made a difference to their eventual decision.

I invite the parties to agree the order resulting. I will list a hearing at which this judgment will be formally handed down. If there are matters arising that can be dealt with on that occasion in 30 minutes or less I will take them; in any other case there need be no attendance and any matters arising will be dealt with at a later hearing, for which the parties should submit an agreed time estimate and dates of availability.