Ernie Clark. Hilperton Division, Wiltshire Council.

A more detailed appraisal of the appeal decision.
'The purpose of this briefing note is to make you aware of the court of appeal judgement in respect of Shrewbury & Atcham Borough Council & Congleton Borough Council and Secretary of State for Communities and Local Government.

1. The Appeal was heard before Waller, Carnwath and Richards LJs and Judgment was delivered on 4 March 2008. All three Judges dismissed the appeals by the Borough Councils.

2. The leading Judgment was delivered by Carnwath LJ. In his judgment he sets out the factual background and the original grounds of appeal. After going through the Judgment of Underhill J in the High Court he enters into a discussion of the law and facts.

3. Before entering into an in-depth discussion he highlights the tactical error made by the appellants in not amending their claim (until pushed by the Court of Appeal) to challenge the formal decisions of the Secretary of State made after the enactment of the Local Government and Public Involvement in Health Act (the 2007 Act).

4. He then deals very shortly with the last three grounds, namely: (1) that the Secretary of State failed to apply her own criteria in respect of public support: (2) whether the European Charter supported the appellants’ contention: (3) whether the Secretary of State’s website with a link to the proposal but not to the objectors was unfair so as to invalidate the process.

5. His Honour did not find any merit in any of these three arguments.

6. He then focuses on the nub of the issue, namely whether the Government had power to embark on the process before the passing of legislation. He went through a brief history of Governmental powers and concludes that the actions of promoting new policies through Parliament is simply a necessary and incidental part of the ordinary business of central government. He concludes that the real issue is how far such preparatory steps can properly go before crossing into territory reserved for Parliament.

7. Carnwath LJ examines the Local Government Act 1992 (the 1992 Act) which set out a process by which local government could be restructured. He concludes that the process adopted by the Secretary of State was inconsistent with the 1992 Act.

8. Mr Arden on behalf of the Borough Councils had argued that if the Government acted inconsistently with the 1992 Act then their actions must be taken as having been infected by “illegality” and therefore as “void and without legal effect”.

9. His Honour concluded that the actions taken prior to the passing of the 2007 Act were preparatory and were never intended to have legal effect. He found that these processes were informal and that their legal significance would only come into being retrospectively with the passing of the 2007 Act.

10. His Honour examined the 2007 Act and the actions of the Secretary of State in December 2007 resulting in final decisions on the two proposals. He found that by the 2007 Act it was apparent that Parliament had intended that some steps taken in anticipation of the Act should be recognised but that after the passing of the 2007 Act there would have to be a genuine reconsideration of the merits of the proposals by the Secretary of State.

11. He found on the facts that there had been such reconsideration and that a valid and legal process had been followed. He therefore dismissed the appeal.

12. Richards LJ agreed with Carnwath LJ’s conclusions and much of his reasoning. He deviated materially from Carnwath LJ’s reasoning on whether the Secretary of State had acted inconsistently with the 1992 Act.

13. His Honour did not read the 1992 Act as preventing the taking of actions by Ministers by way of preparation for the introduction of a different statutory regime and, therefore, their actions did not need to rely on the retrospective effect of the 2007 Act for their lawfulness.

14. Waller LJ concurred with the other two Judges, but recognised the difference in reasoning between Carnwath LJ and Richards LJ. In this regard he concurred with Carnwath LJ.

Please Note: We are awaiting confirmation on whether in the light of the appeal judgment the three Wiltshire District Councils (Kennet, West Wilts and Salisbury) intend to discontinue their proceedings against the Secretary of State in respect of Wiltshire's proposal.'