THE MASTER OF THE ROLLS: This judgment, to which we have all contributed, is the judgment of the court. It is on an appeal from an order of the Divisional Court made on the 13th May, 1982.
The appellants' claim to relief was considered by the Divisional Court in conjunction with a separate application by Mr. Michael Foot and others, Lord Justice Oliver and Mr. Justice Webster each giving a single judgment covering both applications. However it was pointed out to us that, although both applications concern the Boundary Commission for England and the current general review of constituency boundaries, the issues raised by each are quite different. Accordingly, at the suggestion of counsel for the applicants and with the consent of all others concerned, this appeal was heard separately and we now give a separate judgment.
The House of Commons (Redistribution of Seats) Acts 1949-1979 require the Boundary Commission for England to keep under review the need to revise the boundaries of the English Parliamentary constituencies and to report to the Secretary of State from time to time on what changes, if any, they recommend. The criteria to be applied are contained in the Second Schedule to the 1949 Act, read with section 2(2) of the 1958 Act. The rules governing distribution of seats place some limit on the total number of constituencies. When the report has been made, the Secretary of State is required to lay it before Parliament together, except in a case where the report states that no alteration is required to be made, with the draft of an Order in Council giving effect, with or without modifications, to the recommendations contained in the report.
When the Commission have provisionally determined to make recommendations affecting any constituency, they are required to publish a notice stating the effect of the proposed recommendations and inviting representations. Furthermore, if they receive a representation objecting to the proposed recommendation from an interested authority or from a body of electors numbering 100 or more, they are forbidden to make the recommendation until a local inquiry has been held.
For present purposes it is sufficient to say that in April 1981 the Commission published notice of provisional recommendations relating to 12 constituencies wholly within the county of Tyne & Wear and five constituencies partly within that county. Their provisional recommendation was that there should in future be 13 constituencies, all wholly within the county and having the boundaries specified in the notice. The three appellant councils, together with the Borough Council of North Tyneside, objected to the proposed recommendations on the basis that more appropriately there should be 14 constituencies instead of 13, the boundaries necessarily being in some respects different from those proposed. The view was expressed that their counter proposals were to be preferred as (a) preserving the River Tyne as a natural boundary, (b) giving a more equal level of representation to all parts of the county than did the Commission's proposals, (c) taking into account recent growth in the electorates of Washington and Sunderland and (d) reflecting an "entitlement" of 13.48 constituencies.
The word "entitlement" was in due course to create problems and some explanation is therefore necessary. It had not been used by the Commission in their notice of provisional determination. All that that notice had done was to state that the 1976 "electoral quota" being used for the purposes of the review was 65,753 and to record the size of the electorate for each proposed constituency, using 1976 figures. The expression "electoral quota" is defined by the 1949 Act as "a number obtained by dividing the electorate for [England] by the number of constituencies in it existing on the enumeration date". It is common ground that 65,753 is the correct figure. Rule 5 in the Second Schedule to the 1949 Act requires that "the electorate of any constituency shall be as near the electoral quota as is practicable" having regard to certain other rules concerning the undesirability of having constituencies which cross county boundaries and to the desirability of avoiding an excessive disparity between the electorate of any constituency and the electoral quota or between the size of the electorates in neighbouring constituencies. The precise construction of these rules and their inter-relationship is not material for present purposes. Suffice it to say that a division of the total number of electors in Tyne & Wear in 1976 by the figure for the electoral quota produces a figure of 13.477 constituencies for the county. Accordingly the Commission were faced with the choice of recommending 13 or 14 constituencies; it has not been suggested by anyone that any higher or lower figure could have been justified.
The four councils having made representations objecting to the Commission's provisional recommendations, the Commission were obliged to hold a local inquiry and did so in December 1981. Mr. Michael Johnson, of counsel, who had been appointed an Assistant Parliamentary Boundary Commissioner by the Home Secretary, presided. In opening the inquiry he introduced himself and informed those present that he was entirely independent of the Commission. He then read a statement from the Commission themselves which, after explaining the duty of the Commission, set out the provisional recommendations and the considerations which the Commission had had in mind in making them. Those considerations included in relation to "Gateshead", "Newcastle upon Tyne", "North Tyneside", "South Tyneside" and "Sunderland" the phrase "The 1976 electorate entitles the borough [or city] to" a specified number of constituencies or, as the case might be, "just over" or "just under" such a number. In reference to the county of Tyne & Wear it was said that "the 1976 electorate entitles the county to 13 constituencies which would have an average electorate closest to the electoral quota".
Mr. Johnson, having read this statement, then immediately went on to say:
"As that document states, the Commission are bound by statute to base their recommendations on the 1976 electoral figures. Some submissions are based upon the contention that the county as a whole should have 14 seats instead of the 13 seats proposed. The Commission take the view that they are precluded by statute and the Rules made under the various Acts from adopting any of those suggestions. I have an open mind on the matter, but it does seem to me that if I am to consider those particular counter-proposals on their merits, I should form a view as to whether or not they would be a possible course in law, and the view I take upon that may well affect the weight I attach to those proposals when I come to write my report, I would therefore welcome legal arguments upon that point, and while I certainly do not intend to shut out any evidence on the 14 as opposed to the 13-seat argument, those who support the proposal for 14 seats may wish to consider and may feel that it would be prudent to put forward alternative counter-proposals on the basis of only 13 seats for the whole county. That of course would be entirely without prejudice to their principal contention that there should be 14 seats."
During the course of the inquiry a large number of representations were made in addition to those of the four councils, who supported their counter-proposal for 14 constituencies having specified boundaries. In addition, in response to this invitation from Mr. Johnson, legal argument was addressed to him on the criteria to be applied and, in particular, in support of the proposition that a correct application of those criteria would certainly enable and might require the Commission to recommend 14 constituencies.
In March 1982 Mr. Johnson submitted a 31-page report to the Commission. It is divided into nine sections.
In section 2 headed "The Commission's Provisional Recommendations" Mr. Johnson reported:
"2.1 In the 1976 register the Metropolitan County of Tyne & Wear had a total electorate of 886,147, giving a theoretical entitlement of 13.477 which, following the normal procedure, was 'rounded down' to 13 seats."
No doubt this is the normal procedure because any other normal procedure, for example always rounding up or always rounding down, would be likely to lead to the Commission recommending too many or too few constituencies for England as a whole. However there is certainly no statutory obligation to round down fractions of less than a half or to round up fractions of a half or more. Section 3 is headed "Note on the Inquiry". It included the following paragraphs:
"3.3 The predominant issue was without doubt whether or not the county was entitled to (or, at any rate, properly should have) 14 rather than the 13 constituencies proposed by the Commission.
3.4 I have already outlined the way in which the Commission came to put forward their 13-constituency scheme, and I am aware that the Commission take the view that the statutory rules required them to allocate 13 seats to the county and, indeed, precluded them from proposing 14, or any other number, of seats.
3.5 It is not, of course, for me to determine this particular point of law. However I considered it important that I should hear any submissions the parties wished to make, so that the basis upon which the 14-constituency scheme was put forward could be included in this Report, and I deal with those submissions in Section 4.
3.6 In the circumstances, I made it plain at the outset of the Inquiry that I would hear any counter-proposals, whether for 13 or 14 seats, which any party wished to submit, although I urged those contending for 14 seats that it might be prudent also to put forward, entirely without prejudice, alternative proposals for a 13-constituency county."
In section 4, which represents nearly one quarter of his report, Mr. Johnson applied himself to "Submissions on the Law". He first fully, and no doubt fairly, summarised the submissions 'which had been made to him. He then said, correctly, that "It is not my function to rule upon the legal submissions" but then expressed the view that it would be appropriate for him to express his views. This he did in the succeeding 14 paragraphs. In paragraph 4.6.4 he referred to the County of Tyne & Wear as being "entitled" to 13 Parliamentary seats. He then continued:
"4.6.5 Section 2(2) of the 1958 Act relieves the Commission of the duty to give full effect to the Rules in all circumstances, while still taking account, so far as they reasonably can, 'of the inconveniences attendant on alterations of constituencies other than alterations made for the purposes of rule 4 of those rules, and of any local ties which would be broken by such alterations'.
4.6.6 Rule 4, in so far as it is in point in the present instance, provides that 'no county or any part thereof shall be included in a constituency which includes the whole or part of any other county'. The remaining rules to which section 2(2) would seem to refer are Rules 5 and 6, which already contain provisions for departure from their strict application in certain circumstances.
4.6.7 It would appear to follow that strict application of the rules may be dispensed with when there is disparity, or where there are special geographical considerations, inconveniences or the breaking of local ties.
4.6.8 In my opinion, however, it does not follow that the Commission has the discretion to allocate seats other than in accordance with the statutory provisions (as summarised in paras. 4.6.1 and 4.6.2) although, clearly, in reality, if sufficient relevant circumstances were found to be present, the proper result could well be the allocation of an additional seat.
4.6.9 The practice of 'rounding up' to the next whole number a figure containing a fraction of one-half or more, and 'rounding down' anything less than one-half, is a well established and convenient convention. It is, however, no more nor less than a convention but, until some more generally accepted method is devised, it seems to me important that it should be applied consistently.
4.6.10 The introduction of some variable element, such as the statistical error Mr. Hands postulated, in my view could only lead to greater inconvenience and, possibly, to anomalous - or even more anomalous - results. To take three random examples: it would be possible to argue that West Midlands, with a theoretical entitlement of 30.30 would, on the basis of a 2 per cent upper limit of error, be entitled to 30.91 seats, which would round up to 31, whereas West Yorkshire, with a theoretical entitlement of 22.92 would, at the lower limit of error, have an entitlement of only 22.46, which should be rounded down to 22. Avon, with a much smaller electorate than either West Midlands or West Yorkshire, and a theoretical entitlement of 10.29, would, on the upper limit, have an entitlement of 10.499, which should be rounded to 10.50 and further rounded up to 11.
4.6.11 In my opinion the Commission correctly recommended that the county of Tyne & Wear should contain 13 constituencies. Whether there are factors which might justify consideration of increasing that number is a matter I deal with in Section 8 of this report."
Mr. Johnson then referred to two authorities and concluded this section as follows:
"4.6.14 These decisions are not, of course, precisely in point but, in my view, they emphasise the Commission's wide discretion within the statutory framework and, if I am wrong about their being precluded by the Rules from doing other than allocate 13 seats to the County of Tyne & Wear, then that would nevertheless appear to be a decision which it was well within their discretion to make. 4.6.15 However, as I have already stated in para 3.6, I heard counter-proposals for both 14- and 13-constituency schemes, as set out in the following section of this Report."
Sections 5, 6 and 7 of the report were then respectively devoted to recording and commenting on the four councils' 13 and 14-constituency counter-proposals, other counter-proposals and representations and what Mr. Johnson described as "general considerations".
These can fairly be described as local geographical and sociological features none of which are sufficiently material for present purposes to be quoted or even summarised. However section 8, entitled "Special Considerations", is certainly material. It reads:
"8.1 In the course of the Inquiry and during my subsequent deliberations I have formed the view that there would be certain advantages in the County of Tyne & Wear having 14 constituencies with an average electorate, on the 1981 figures, of just over 64,000 each.
8.2 So far as the Rules are concerned, in so far as I have not already dealt with them in Section 4 of this Report, the only relevant ones seem to be Rules 5 and 6.
8.3 With regard to Rule 5, a, to my mind, cogent argument which was advanced was the substantial disparity between the counties of Tyne & Wear and Northumberland which would result if the Commission's proposals for Northumberland should be adopted - as I was informed had been recommended. In that case the proposed constituencies of Tynemouth and Wallsend, both with electorates, on 1976 and 1981 figures, in the mid-75,000s, would lie adjacent to the constituency of Blyth Valley with 51,785 electors.
8.4 With regard to Rule 6, the only geographical feature which could be considered relevant in the present instance is, of course, the River Tyne, and I have already dealt with that in paras. 7.11 to 7.14.
8.5 If it should be felt that, either pursuant to section 2(2) of the 1958 Act or otherwise, departure from the Rules would be desirable, then, in my view, the socioeconomic state of the region should be considered. I was told in the course of the Inquiry that, at that date, unemployment stood at about 178,000, or nearly 20 per cent of the 1981 electorate, and that the county has been designated a Special Development Area.
8.6 Having said that, I am bound to add that, attractive as a 14-constituency county may be, I have come to the firm conclusion that the counter-proposal for 14 constituencies put forward by the Four Councils has a number of serious disadvantages. In the circumstances, and in view of my conclusions at para. 4.6.11, I have not thought it appropriate to analyse those proposals in detail, or to seek alternative schemes which might command greater public support.
8.7 It follows that, if consideration were given to a 14-constituency county, I would not recommend the adoption of any existing scheme, and entirely new proposals would accordingly have to be formulated."
In section 9, which covers his conclusions and recommendations, Mr. Johnson recommended the adoption of the Commission's provisional proposals, save in relation to the three proposed Sunderland constituencies whose boundaries and names should, he considered, be changed.
We are bound to say that we find Mr. Johnson's report confused and confusing in relation to the extent to which it was open to the Commission to recommend 14 constituencies for the county. On the one hand in paragraphs 3.4 and 4.6.14 he appears to be saying not only that the Commission considered themselves precluded, almost as a matter of law, from recommending 14 constituencies but that he agreed with this view; yet on the other hand in paragraphs 4.6.8 and 4.6.11 he seems to be expressing the view that whether 13 or 14 constituencies should be recommended depended upon local circumstances.
In an affidavit filed in the present proceedings Mr. Johnson says:
"I was, of course, aware that the Commission had discretion within the rules to consider 14 seats ... I did not use the word 'precluded' to mean, and I do not understand it to mean, 'absolutely prohibited'. In this context, my intention was to indicate that I understood the Commission considered that it would be impracticable or inappropriate in the particular circumstances of this case to recommend more than 13 seats to the county."
No doubt that was his subjective intention. For present purposes, however, his subjective intention is not, we think, relevant.
In the middle of May 1982 the Commission wrote to the appellants and no doubt to other objectors in the following terms:
"GENERAL REVIEW OF PARLIAMENTARY CONSTITUENCIES: TYNE AND WEAR
The Commission has now considered the assistant Commissioner's report on the local inquiry into their provisional recommendations for the parliamentary constituencies of Tyne and Wear.
The Commission decided that they should not revise their recommendations for the City of Newcastle upon Tyne and the Boroughs of Gateshead, North Tyneside and South Tyneside at this time. They will, however, be reappraising their recommendations for constituencies throughout England as they near completion of their current general review. If the Commission were then to decide to revise their recommendations, they would publish those revisions locally and invite representations on them before they submitted their final recommendations to the Home Secretary in accordance with the statutory procedure.
The Commission have decided to publish revised recommendations for the Borough of Sunderland, on the basis recommended by the assistant Commissioner. Details of the revised recommendations are given in the enclosed copy of a press notice which is being published this week in local newspapers.
These revised recommendations for Sunderland make no change in the total number of constituencies provisionally recommended for the County of Tyne and Wear. A copy of the assistant Commissioner's report of the local inquiry held in Newcastle upon Tyne in December 1981 is also enclosed for your information."
A little less than three months later, the appellants sought leave to apply for judicial review in the form of an order to quash the decision contained in that letter and to prohibit the Commission from submitting any report to the Secretary of State in terms foreshadowed by it. The stated grounds were, in essence, that the Commission had misdirected themselves in law in treating themselves as being bound to recommend 13 constituencies for the county of Tyne and Wear and, which is much the same thing, had failed to have proper regard to the merits of the proposals for 14 constituencies.
Leave to make the application was then granted, but, before it was heard by the Divisional Court, an affidavit was sworn on behalf of the respondents by Sir Raymond Walton, the Deputy Chairman of the Commission. In this affidavit he specifically confirmed that the Commission had never regarded themselves as being prohibited from allocating more than 13 seats to the county of Tyne & Wear. However, he said, the Commission had not been persuaded that there was any sufficient justification, under the statutory provisions according to which they had to operate, for the allocation of any greater number than 13 constituencies. He added that the Commission had not in fact always rounded down to the next whole number any theoretical entitlement containing a fraction of less than one half, but had always considered the particular circumstances of each county and London borough, as illustrated by examples given by him.
Mr. Sears for the appellants concedes, as he did before the Divisional Court, that he has no basis upon which to challenge these statements of the Deputy Chairman. Neither the statement of the Commission read out by the Assistant Commissioner at the inquiry nor its letter of May 1982, when given their fair and proper meaning, in our opinion suggest that the Commission had regarded themselves as bound to recommend 13 constituencies for the county of Tyne & Wear or had on this account misdirected themselves in law when reaching the conclusions set out in their letter.
No doubt having these points in mind, Mr. Sears did not at the hearing before the Divisional Court and does not before this court seek to sustain the submissions that the Commission had misdirected themselves in law in this manner or that in the exercise of their discretion they had failed to have proper regard to the merits of the proposals for 14 constituencies. The substantial ground upon which he has sought relief in both courts has been one which is not expressly referred to in the appellants' application for judicial review. In argument before the Divisional Court and before us, he presented what was, in truth a wholly different application. He submitted that the local inquiry was unfair, or appeared to be unfair, in that (a) Mr. Johnson made an error of law in so far as he expressed the view that the Commission were precluded from recommending 14 constituencies for the county, (b) as now emerges, Mr. Johnson made an error of fact, in so far as he attributed this erroneous view of the law to the Commission and (c),Mr. Johnson's views of the law may well have coloured his view of the force of the counter-proposals for 14 constituencies. Furthermore the Commission, although not normally under any obligation to explain provisional recommendations reformulated after receiving the report of a local inquiry, were bound to do so in the circumstances of this case, at least to the extent of dissociating themselves from Mr. Johnson's errors of fact and law.
One striking feature of the appellants' application for judicial review is that it seeks to quash the determination of the Commission set out in their letter of May 1982, even though this determination was on its face of a merely interim nature, since the letter stated in terms that the Commission would be reappraising their recommendations for constituencies throughout England as they neared completion of their current general review and that this would be done before their final recommendations were submitted to the Secretary of State. When this point was put to him in argument in this court, Mr. Sears, in our opinion inevitably, accepted that the court could not at the present time in any reasonable exercise of its discretion quash a merely interim determination of this nature, and thereby prevent the Commission from making recommendations to the Secretary of State concerning the whole of England, when any Injustice suffered by the applicants could be remedied in a less drastic manner by a declaratory judgment, the terms of which would be as available for consideration by the Secretary of State and Parliament, as would be the Commission's report. Though we infer that no such concession was made on behalf of the appellants in the Divisional Court, it is now common ground that if any relief were to be given to them at all, the only appropriate form would be by way of declaration.
In argument before us Mr. Sears was accordingly pressed to formulate the declaratory relief which he sought and it was not without interest that he needed time to do this. He then put . forward two declarations:
(1) That the Assistant Commissioner appointed to hold the local inquiry (Mr. Johnson) misdirected himself in law in considering that the Boundary Commission was precluded by law from recommending 14 constituencies for the county of Tyne & Wear and that his conclusion on the law might have affected the weight which he attached to the evidence.
(2) That it would be in accordance with their statutory duty for the Boundary Commission to reconsider the objections lodged, having regard to the declaration set out above.
As we have already indicated, we think that the Assistant Commissioner did express himself in unfortunately ambiguous terms, which were at least capable of being understood by the appellants and others as indicating a misapprehension as to the law of the nature suggested. Nevertheless, even assuming that he was under such a misapprehension, we see no reason to suppose, from a reading of his report as a whole or from any other evidence, that this caused him to refrain from giving full and proper consideration to the appellants' counter-proposals for 14 constituencies, on their merits. Having done so and having indicated, in paragraph 8.1 of his report, some sympathy in principle with a proposal for 14 constituencies, he then made clear his ultimate conclusion in paragraphs 8.6 and 8.7, namely that these particular counter-proposals were unacceptable to him on their merits. We can see no sufficient grounds for thinking that, even if he misdirected himself as to the law, this misdirection in the event affected this ultimate conclusion in any way. In all the circumstances, like the Divisional Court, we cannot accept the appellants' submission that their proposals were not fairly considered at the local inquiry or that they have any valid complaint arising out of the manner in which the inquiry was conducted.
Turning to the position of the Commission themselves, there can be no real dispute that Mr. Johnson's report contained errors or apparent errors. However, there is no reason to suppose that the Commission were not fully aware of them or that they were influenced by them in any way whatsoever. Exercising that invaluable judicial quality of hindsight, it is arguable that the Commission might have saved themselves considerable trouble by dissociating themselves in their letter of May 1982 from these errors and, in particular, from the statements in the report concerning their own view of the law, but in our judgment they were under no duty to do so. Their duty was to consider that report. It fully recorded the nature and basis of the 14-constituency proposal then being put forward by the appellants, and regardless of whether or not the 14-constituency option was open to the Commission, recommended against it on its merits. Again the Commission fulfilled that duty. Their only further duty is to report to the Secretary of State, which no doubt they will do as soon as there are no further obstacles in their way.
There are no grounds for requiring the Commission to reconsider the appellants' original proposals and the question of whether they would or should have considered revised proposals if they had been submitted to the Commission in reply to the letter of May 1982 simply does not arise, for no such proposals were ever submitted. Indeed, though more than seven months have now elapsed since May 1982, they have not yet been formulated and may, for all we know, prove very difficult to formulate. In these circumstances we can see no possible ground for granting the proposed or any declaratory or other relief and the appeal will be dismissed.
(Order: Appeal dismissed with costs. Application for leave to appeal to the House of Lords refused).
