England and Wales High Court (Administrative Court) Decisions

JOINT COMMITTEE FOR PURPOSE OF MAKING APPOINTMENTS TO HUMBERSIDE POLICE AUTHORITY Ex parte EAST RIDING OF YORKSHIRE COUNCIL, R v. [2000] EWHC Admin 434 (19th December, 2000)

Case No: CO/3470/2000

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Tuesday 19th December 2000

MRS JUSTICE RAFFERTY:

1. This is an application for judicial review of the 4th September 2000 decision of the Joint Committee for the purpose of making appointments to the Humberside Police Authority ("the joint committee") to appoint members of the police authority and/or to resolve that it was entitled to disregard independent councillors in the exercise of its duty to ensure that the members it appoints to the Humberside Police Authority reflect the balance of parties for the time being prevailing among the members of the relevant councils taken as a whole. The relief sought is certiorari to quash the decision, and a stay of the implementation of any decision purportedly made on the 4th.

2. On the 1st May 1996, Humberside County Council and the District Councils within that area were replaced by 4 unitary authorities, who assumed responsibility for the County District Councils' functions. Those authorities are the East Riding of Yorkshire, Kingston Upon Hull, North East Lincolnshire and North Lincolnshire. Because the police area for Humberside covered all four areas it was necessary for them to constitute a joint committee responsible for the appointment of 9 members to the Humberside Police Authority under Schedule 12 Police Act 1996.

3. The joint committee met on the 1st June 2000. In that meeting, for the purpose of making appointments, the committee is said to have failed to reflect the balance of parties for the time being prevailing among the members of the 4 councils taken as a whole, as required by Police Act 1996, S.4, Schedule 2, para 4(1)(b). It had decided to appoint 5 Labour councillors, 3 Conservatives, and 1 Liberal Democrat. The East Riding Council contended that it should have appointed 4 Labour, 3 Conservatives and 2 Liberal Democrats, so as to reflect the proper balance. It had arrived at its result by excluding from consideration councillors who were Independents on the grounds, semble, that Independents are not members of political parties. The East Riding was granted permission to apply for judicial review of the decision by Hidden J on the 8th June 2000. Kingston Upon Hull opposed the application.

4. By a consent order on the 16th August 2000, the decision was quashed, but on the limited basis that the meeting of the 1st June 2000 was legally flawed as it had failed to make appointments, instead voting to maintain an existing allocation (between the 4 councils) and had left it to the councils themselves to make appointments to the Police Authority. In consequence the question of appointments to the Police Authority was remitted to the joint committee.

5. It met on the 4th September 2000, and considered a report by its Clerk, Mr Jim Leivers (Chief Executive of North East Lincolnshire). He recommended that the committee should include independent members in their assessment of the balance, as per the joint opinion of counsel, Mr Supperstone QC and Miss Laing, which he had commissioned and which was before the committee.

6. The joint committee concluded as before. Its decision of the 4th September 2000, reaffirmed on the 6th September 2000 is now challenged.

7. The total membership of the 4 councils is 211, comprising 101 Labour members, 59 Conservative, 37 Liberal democrat, and 14 Independents. Thus the balance of parties across the membership as a whole is, in percentage terms, Labour 47.86, Conservative 27.96, and Liberal Democrat 17.53.

8. Provisions governing the functions and proceedings of a joint committee are to be found in the Local Government Act 1972 ("the 1972 Act") and the Police Act 1996 ("the 1996 Act"). There are also provisions as to political balance within the Local Government and Housing Act 1989 ("the 1989 Act"). S.3 Police Act 1996 establishes for each police area a police authority defined in S.1. By S.4, each police authority consists of 17 members, subject to the Secretary of State's power to increase by order. S.4 gives effect to Schedule 2. Paragraph 1(1)(a) of Schedule 2 provides that, where a police authority is to consist of 17 members, "9 of those members shall be members of a relevant council appointed under paragraph 2."

9. Paragraphs 2 to 4 of Schedule 2 provide as follows:

"2.-(1) In the case of a police authority in relation to which there is only one relevant council, the members of the police authority referred to in paragraph 1(1)(a)..... shall be appointed by the council.

(2) In any other case, those members shall be appointed by a joint committee consisting of persons appointed by the relevant councils among their own members.

3. The number of members of the joint committee, and the number of those members to be appointed by each relevant council, shall be such as the councils may agree or, in the absence of agreement, as may be determined by the Secretary of State.

4.-(1) A council or joint committee shall exercise its power to appoint members of a police authority under paragraph 2 so as to ensure that, so far as practicable, the members for whose appointment it is responsible reflect -

(a) in the case of appointments by a council, the balance of parties for the time being prevailing among the members of the council, and

(b) in the case of appointments by a joint committee, the balance of parties for the time being prevailing among the members of the

relevant councils taken as a whole."

10. S.99 of the 1972 Act gives effect to Schedule 12 as to meetings and proceedings of local authorities, and police authorities and their committees, including a joint committee. Their effect is that decisions are by a majority of those present and voting, the person presiding has if necessary a casting vote, and standing orders may be made for regulation of proceedings and business.

11. Sections 15 to 17 of the 1989 Act make provision, in respect of those bodies to which the local authorities may make appointments, (set out in Schedule 1) for the securing of political balance. There is imposed the duty from time to time to review the representation of different political groups on any body caught by the statute and to which there is power to make appointment.

12. Section 15 reads where relevant as follows:

"15.- (1) It shall be the duty of a relevant authority having power from time to time to make appointments to a body to which this section applies to review the representation of different political groups on that body-"

Section 15(5) sets out the principles, to be followed "so far as reasonably practicable", by which seats are to be allocated.

13. There exist two striking differences between the 1989 and 1996 Acts. First, the duty under the 1989 Act is to comply with proportions "as far as reasonably practicable", whilst that under paragraph 4 of the 1996 Act is to comply "so far as practicable". Second, the 1989 Act contains reference to "political groups", the 1996 Act only to "parties".

14. The applicant contends that what is plainly contemplated by the legislation is a totalling of council members, followed by an analysis of party, so as then to achieve balance. All members must thus be counted and have relevance to the final result. Even were a member not to constitute a party, as it seems accepted Independents may not, his presence on a council cannot for the purposes of this exercise be ignored. What, the applicant rhetorically enquires, would be the outcome, were the defendant's interpretation correct, of election to the relevant councils of - from a notional 100 - 51 independents, and 49 others comprising the 3 major political parties? Not only would the result for which the defendant contends fail to reflect "the balance of parties for the time being prevailing among the members of the relevant councils taken as a whole", but it would be absurd. I have been helpfully referred to tabulated records of elected members in varying councils nation-wide. The point to be derived therefrom is that, whether increasing or not, the presence of elected Independents is a fact. As to their proportion, in comparison to the 3 main political parties, the defendant argues that close attention to local police areas would tend to undermine the suggestion on the face of the records that their presence is on the increase. The applicant, as I understand it, is content to rely upon the figures on the face of the documents, as reinforcing his contention that common-sense indicates that their importance as a political factor is not to be underestimated. Whether their number is increasing may be arguable but is of marginal if any assistance to this court. It is their presence consequent upon votes cast which is relevant.

15. Mr Straker QC for the applicant submits that the provisions under consideration are intended to allow at local level the reflection of the expressed views of enfranchised citizens, whose presence in the voting booths has indicated their interest in, inter alia, the workings of the joint appointments committee for their police authority. Putting it shortly, as Mr Pardoe QC for the defendant did, albeit with altered emphasis, the provisions are "trying to reflect local conditions."

16. What meaning should be given to "parties"? The defendant argues that "the balance of parties for the time being prevailing among the members of the relevant councils taken as a whole", allows the presence of members (such as Independents) on relevant councils to be discounted, they not being members of a political party. The applicant contends that not for nothing is there an absence in the germane sections of the word "political".

17. The Registration of Political Parties Act 1998 ("the 1998 Act") creates a register of political parties. Registration protects the registering party from the improper use of descriptions similar to its name, and is a pre-condition for party political broadcasts. Paragraph 4 is unlikely, by "party", to have meant "political party registered under the 1998 Act", Mr Straker argues, as 1996 comes before 1998, and, had the draughtsman intended the 1998 Act to affect the interpretation of paragraph 4, he would have made express provision therefor. The use of language and of concept different from those used in the 1989 Act suggest that "party" in paragraph 4 means neither "political party registered under the 1998 Act" nor "political group" as that term is used in the 1989 Act.

18. Paragraph 4 contains one particular noun upon which I have been addressed at some length, to wit "balance". It is variously defined within different editions of the Oxford English Dictionary as "to weigh or ponder; to weigh two things against each other; to achieve general harmony between the parts of anything; the process of finding the difference, if any, between the debit and credit sides of an account."

19. I was urged by Mr Straker to take account of a letter from the Home Office dated 31st May 2000 to Mr Mike Walters of North East Lincolnshire Council. Headed "Police Authorities: Appointment of members by relevant councils" it reads where relevant as follows:

"Therefore the only relevant legislation is paragraph 4 of schedule 2 to the Police Act 1996.

One important issue which has arisen in several police authorities is how to take account of independent councillors in "the balance of parties". We sought legal advice on this. The Home Office's view is that, while independent councillors do not constitute a political party, they should nevertheless be taken into account when calculating the political balance of the parties and, so far as practicable, should be allocated seats on the police authority in proportion to their numbers on the council or, where there is more than one relevant council, the relevant councils taken as a whole.

Where there is more than one relevant council in the police area, the appointments must of course be made by the joint committee in accordance with paragraph 4(1)(b). The calculation of the balance of parties must be based on the total number of councillors (including independent councillors) across all the relevant councils."

20. What, if any, weight should this document attract? Mr Straker urges that it is persuasive, Mr Pardoe that the view of the department attracts no more than respect. I was helpfully referred to Dr Bennion's work, Statutory Interpretation, third edition, and to Pepper v Hart [1993] AC 593. Contrasting "Pepper v Hart" reference to Hansard, as approved by Dr Bennion and nowadays not uncommon, with reliance however slight upon a departmental letter, Mr Pardoe points to the much diluted approach recommended for letters and the like. He reminds me that decisions are for this Court to make. In my judgment, the department's view attracts no more than respect, and should not be elevated to the status of persuasive. However, no matter what its status, its effect upon my conclusion is unchanged. Following Pepper v Hart, I derive assistance from the extract from Hansard to which I shall shortly turn.

21. The applicant contends that the joint committee should have adopted a straightforward approach, as follows: the percentage of seats achieved by each of the political parties should have been determined, and the 9 seats on the Police Authority divided between them as per those proportions, so far as practicable, considering also the appointment of Independent members if sufficient numbers warrant.

22. Mr Pardoe, whose first short note of the 21st June 2000 and whose longer Advice of the 3rd July 2000 was each before the joint committee, submits that this cannot be correct. He contends that the phrase "balance of parties for the time being prevailing among members of the relevant councils taken as a whole", which has not been the subject of any court's decision, must have a plain and unambiguous meaning. It directs attention to the relative performance of political parties at elections to the relevant councils and could hardly be taken to mean anything different. He dismisses the 1989 Act as of no relevance. It he contends must be construed by reference to the regulations under it, which have nothing to do with a proper construction of the phrase "balance of parties" in the 1996 Act. He takes a view entirely different from that advanced by Mr Supperstone QC and Miss Laing who in their Advice of the 22nd June 2000 wrote ".....what is required is that the total number of members of all the relevant councils is added up, and then broken down into "parties" to see what the balance is." He submits that what meaning should be given to the word "parties" is, in that Advice, unclear, as it continued "it may be, depending on the facts, that all "independents" can be allocated to one party, if in fact they constitute a party; or it may be that they will have to be sub-divided into a number of different parties. One member who is not affiliated to any political party, or to any other member(s), might, nevertheless be a ´party in this sense´."

23. Mr Pardoe argues that the use of the word "party" must mean a political party. If that be the case, then its members would represent that party and by definition could not be Independents. The reasoning contained in the Advice does not withstand rigorous examination, he submits, and the plain meaning of "balance of parties" must be balance as between political parties for which councillors stood for election.

24. Accepting as he does that paragraph 4 is silent as to the word "political", he turns to Hansard H.C. Standing Committee D 1993 - 4 cols. 72 to 89. The sponsoring Minister, Mr Charles Wardle MP, stated "The Hon Member for Ellesmere Port and Neston talked about electoral swings but the point of the arrangements proposed in the Bill is that local authority membership of police authorities must reflect the political balance of the constituent councils taken as a whole. Therefore the balance on the police authority will reflect the success or failure at the ballot box of any particular party." Mr Pardoe rests easy therefore, in his construction of paragraph 4, in that clearly "balance of parties" must by reference to Hansard mean the balance of numbers of seats held by councillors holding their seats as representatives of political parties as ordinarily understood. It follows that Independents do not enter the calculation of balance of parties. Thus he contends the plain meaning of paragraph 4, confirmed by Hansard, avoids the contortions of logic otherwise required to bring "Independents" into the calculation of "balance of parties".

25. Mr Straker suggests the Minister was simply saying that the joint committee must consider the entire membership of the relevant councils, identify therefrom the proportions of party membership, and act accordingly.

26. He invites an approach yet more robust than that of Supperstone and Laing. They endeavoured to achieve some projected disposition of Independents, which Mr Straker deems unnecessary, contending for a calculation of the figures, an appreciation and subsequent achievement of balance, but nothing more. Although accepting that it is a point of only marginal assistance, he referred me to Sanders and Younger-Ross v Chichester and Palmer Divisional Court November 11th 1994. That was the well-known case of a candidate at election describing himself as a "literal" democrat. Dyson J as he then was rehearsed the words of Lord Stonham, Minister of State at the Home Office, who, during the House of Lords debate, had said

"consideration of this scheme in another place showed that its complexity made it undesirable even for parliamentary elections, and for local government elections, where the need for Party labels on ballot papers is greatest it would be almost impossible."

His Lordship continued

"it is clear, therefore, that the possibility of misleading description was considered in detail before the passing of the 1969 Act. The government position was clearly stated by Mr Callaghan and Lord Stonham."

and later

"our task has been to analyse the statutory provisions governing the conduct of elections. For the reasons that we have set out at some length, it is clear to us that contrary to what might be thought to be popular view, Parliament has focused on certain minimum criteria for identifying candidates which do not include references to political parties, it being assumed that voters will learn all they need to know about the candidate during the election campaigns."

27. The help Mr Straker derives from this reference is that parliament has been historically shy of giving advance status to, or even acknowledgement of the existence of, political parties. He must, it seems to me, be correct to describe this as of marginal relevance. The fact of the matter is that at election time, nationally or locally, candidates are now allowed to record and do frequently record their political affiliation at the side of their names on the ballot paper.

28. Mr Pardoe contends that the applicant has side-stepped "balance of parties" so as to focus attention on "balance among members". He squarely confronts the fact that the result for which he contends may be undesirable. So be it, he answers. What is here required is a rigorous examination of statutory language and the application of its intended meaning. To adopt "proportionate" as the criterion for interpretation is simply not to grapple with the meaning of the word "parties". It was a plank of Mr Pardoe's argument, and may even have been an important plank, that parliament is the forum for the alteration of an undesirable result, not this court, if this court could only achieve it by failing to apply the rules of statutory construction.

29. As to the 1994 removal of police authorities from the 1989 Act, he contends that it would be odd were there not a difference between the two statutes. As a matter of background, a general trend toward enlargement of police areas, coupled with a reduction in numbers of police authorities, fortifies his contention that parliament moved away from the "proportionate" system to the language within paragraph 4. This, it is argued, was a streamlining for administrative purposes. In comparison, the proportionate system, if applied across large areas, would result in chaos. Here, Mr Pardoe contends, one finds the rationale for the inclusion in Section 4 of the words ".....so far as is practicable...." and "reflect", which are not to be construed by an assessment of proportion. Support for his submission he argues lies in the inability of the applicant at any stage effectively to deal with what Mr Pardoe terms the central fallacy of its argument, viz that "proportion" can be synonymous with "balance of parties". Parliament knew at the time this legislation was put in place that 90% of seats locally were held by main parties. It may have adopted what he concedes is a "rough and ready" solution to an administrative question. But to describe it as "absurd", as does the appellant, is shown to be wrong by the lack of example Mr Straker was able to supply.

30. The defendant has contended throughout that it is important to have an eye to legislative history. These provisions do not arise out of the blue. Under S.15, there existed a history of political balance, which parliament removed and substituted by way of paragraph 4. Proportionality under Section 15 means, in the contention of the defendant, that when Hull County Council considers whom it should appoint to the joint committee, it, Hull County Council, not the joint committee, must make proportionate decisions. Challenged to identify quite what the wording within paragraph 4 imports, Mr Straker volunteered "shades of meaning, a gathering, a collection, with a political label." It is difficulties such as these, contend the defendant, which give a pointer to true construction. It is no answer, he suggests, for the appellant to say that the touchstone is that the draughtsman, using the word "parties", contemplates "some sort of party label".

31. It is in many ways difficult to see why, if in a notional election, 70 of 100 seats were won by Independents, they should not find a voice on the joint committee. It may be, this court knows not, that parliament, given an apparent increase in independent elected representatives nation-wide, may wish to address and clarify the matter. Nevertheless, in my judgment, the approach of Mr Pardoe and thus of the joint committee is to be preferred. The words of the statute are clear, and Hansard leaves little room for doubt. For the reasons I have rehearsed, this application is dismissed.

WITH REFERENCE TO RSC ORDER 68 RULE 1 AND THE PRACTICE DIRECTION OF THE MASTER OF THE ROLLS DATED 9TH JULY 1990 [1990] 1 WLR 1126:

I certify that the attached text records my judgment and direct that no further note or transcript need be made.

MRS JUSTICE RAFFERTY: For reasons I have rehearsed, this application is dismissed.

MR PARDOE: My Lady, I took the liberty of sending a fax with a very minor typing error.

MRS JUSTICE RAFFERTY: In fact you each sent exactly the same one to my shame.

MR PARDOE: That is reassuring.

MRS JUSTICE RAFFERTY: Fancy being caught out on an apostrophe. Thank you.

MR PARDOE: My Lady, there remains then on my behalf an application for the costs of the Joint Committee to be paid by the East Riding Council, the entire costs of this application. I couple with that an application for summary assessment of those costs. To that end I have filed, and have served on the other side, a statement of our costs.

Before I go any further, your Ladyship may or may not have with your Ladyship's papers, the other side applied before hearing and announced that they intended to apply for a summary assessment of costs before the hearing, and to that end served a statement of their costs. It may be instructive to have that before your Ladyship at the same time. If your Ladyship does not have it I will hand it up.

MRS JUSTICE RAFFERTY: It does not ring any bells.

MR PARDOE: There is a bundle coming up, my Lady. I will describe the contents when you have it. (Handed). The first is our statement of costs. Then in a bundle, headed with a letter from Sharpe Pritchard, a statement of the other side's costs. Then a bundle of correspondence between the police authority, the clerk to the Humberside Police Authority and the Home Office. I asked very specifically that it be served on the other side. I have no doubt that it was.

Your Ladyship will see that, taking that last item first, your Ladyship will see that because of the various applications by East Riding Council decisions on the appointments to the Humberside police authority have now been delayed for at least six months. This is, and your Ladyship will see, it is the final letter to the Home Secretary, the final letter in the bundle.

MRS JUSTICE RAFFERTY: Of 9th November.

MR PARDOE: Exactly. To the Secretary of State. It is pointless for me to read it out. It is before your Ladyship. It adverts to various difficulties and the need for a speedy resolution.

The Home Office's reply is on 13th November. It is from an executive officer in the Home Office, Joanne Harrison. Interestingly, in view of one of the submissions on the other side, paragraph 2 says:

"We cannot comment on the merits of the application for judicial review."

Very properly in my respectful view.

MRS JUSTICE RAFFERTY: Well, you would say that.

MR PARDOE: I would and indeed I do. But saying that simply all that can be done is to expedite the hearing and get on with things which, thanks to your Ladyship, we have been able to do. I put that before your Ladyship because it is a matter that is material to your consideration later; it may be.

Reverting now to the matter of costs. Your Ladyship will see that our application is in for a total of £13,000-odd. Your Ladyship will see that Sharpe Pritchard's statement of costs is greater than that; £2,000 greater almost to the penny.

This is a proper case for detailed assessment on your Ladyship's part. If I may refer your Ladyship to the relevant provision in the White Book. This being a one day case, this is a proper case for detailed assessment. The meaning of summary assessment is 43 -- I said detailed, I meant summary. 43.3 on page 767 of volume 1 of the White Book. That gives your Ladyship the meaning. And then the practice direction is in section 13. That is at 44 PD, 13.2, page 798.

MRS JUSTICE RAFFERTY: Is this volume 2?

MR PARDOE: No, the same volume, my Lady. Section 13, 13.2. The general rule is that the court should make a summary assessment of the costs; (2) at the conclusion of any other hearing which has lasted not more than one day. If this hearing disposes of the claim the order may deal with costs for the whole claim. My submission is that this matter falls plum within 13.2(ii) of that practice direction. We have, pursuant to that, complied with the various practical practice orders.

My Lady, I know not whether this is resisted or, if it is, on what grounds. But your Ladyship has before your Ladyship the details of our costs and the details of the other side's costs. Beyond making the obvious, but nevertheless relevant point, that their costs appear to have been greater than ours, there is my submission. I ask for those costs.

MRS JUSTICE RAFFERTY: Thank you very much. Mr Straker.

MR STRAKER: My Lady, I resist neither an order for costs nor the application for summary assessment. However, the figure for summary assessment is one to which attention should be paid. The comparison just made between my learned friend's costs and the costs for the applicant is plainly, as your Ladyship will readily appreciate, not an apt comparison for this reason. It is not comparing like with like for, of course, the applicant did, as of necessity, make a further application to the court before Keene J, as he then was, in order to secure permission for the hearing that took place before my Lady, when, of course, my learned friend was not present and, of course, the necessary work for that was done exclusively by the applicant.

So one has to be careful not to say that merely because the figures on the one side are larger than the figures on the other and that somehow or other the figures of the lesser -- in the lesser sum are appropriate.

MRS JUSTICE RAFFERTY: Do you quibble with anything in particular?

MR STRAKER: The quibble is in this respect, my Lady. Would your Ladyship go, please, to the penultimate page of the Sharpe Pritchard costs?

MRS JUSTICE RAFFERTY: Yes, I am there.

MR PARDOE: And your Ladyship will see counsel's fees are identified.

MRS JUSTICE RAFFERTY: Yes, by name.

MR PARDOE: By name.

MRS JUSTICE RAFFERTY: Yes.

MR PARDOE: And if your Ladyship looks at the bottom line for me and then the bottom line for Mr Palmer, who I led, your Ladyship gets the totality of the brief fees incurred for the hearing before your Ladyship of 24th November.

MRS JUSTICE RAFFERTY: Yes.

MR PARDOE: The comparison which is then to be made is the end of --

MRS JUSTICE RAFFERTY: I have got it, thank you.

MR PARDOE: You will see the difference is some £6,000. Now, my Lady, the position here is that we recognise summary assessment as being appropriate. We do not quibble with the solicitors' costs or the waiting times and matters of that sort, but we do draw attention to that disparity in those figures for 24th November, bearing in mind it is a straight comparison between the exercise which was being undertaken. With that in mind Sharpe Pritchard suggested, and openly suggested, that it would be appropriate rather than the grand total as it is recorded of £13,285, that rather there be a payment of £11,000. My Lady, there is no particular, I have to recognise, science in saying £11,000 as opposed to £11,100 or £10,900. It reflects the view that was taken when the figures were placed side by side in respect of the hearing which occurred in connection with this matter on 24th November where the direct comparison could be made.

So, my Lady, my application, therefore, or my response to my learned friend's application for summary assessment of costs, is not to resist it in principle, but to suggest that the court ought properly to bear in mind that discrepancy and summarily assessing the costs to indicate a figure in the region of £11,000 rather than the figure as sought.

MRS JUSTICE RAFFERTY: I am grateful. Thank you.

MR PARDOE: My Lady, I do not have a junior. I suppose I should be subject to a little embarrassment in this enquiry but I am not. I am prepared to argue the point. The point is this. We took the view, those instructing me took the view, that the chief burden of this case fell upon counsel. It was a matter of construction. A matter for hard argument of law. I can tell your Ladyship, and I hope it emerged from the skeleton, that the preparation of the skeleton and the preparation of arguments took a good deal of time on my part. Nobody else's. It was my work. It was unavoidably my work. That is demonstrated -- that difference of distribution of work is demonstrated in various ways in the schedule of costs.

MRS JUSTICE RAFFERTY: I do not need to trouble you.

MR PARDOE: I am obliged.

MRS JUSTICE RAFFERTY: The summary assessment of costs in this case in the sum of £13,000. Yes, Mr Straker.

MR STRAKER: My Lady, your Ladyship will turn, if I may, to the question of permission to appeal.

MRS JUSTICE RAFFERTY: But briefly, Potter LJ awaits.

MR STRAKER: My Lady, yes. Your Ladyship will appreciate that the position is that permission to appeal will only be given in accordance with the relevant civil procedure rule 52.3 where the court considers that the appeal would have a real prospect of success or there is some other compelling reason why the appeal should be heard.

In my respectful submission, this case qualifies for an appeal on both counts, first, real prospect of success, that is in consequence of the fact that your Lady has in the judgment taken a balance between the parties as opposed to a balance across the membership as a whole.

My Lady, lest that be put forward as, so to speak, if I may speak in this way, as forensic sour grapes, it is a matter whereby your Ladyship will appreciate that it is not the view alone of the East Riding Council but that the Committee beforehand had taken advice from leading and junior counsel.

MRS JUSTICE RAFFERTY: Yes, I know that.

MR STRAKER: And that the Home Office had spoken to certain effect.

MRS JUSTICE RAFFERTY: Yes.

MR STRAKER: Second, in support of the proposition that there is some other compelling reason why the appeal should be heard, the consequence of the judgment as given is that there are undoubtedly authorities, police authorities as constituted, which are constituted in breach of the law as my Lady has indicated it to be. Your Ladyship will recollect that there are authorities with independent members on them. A limited exercise was done for the purposes of the case. There is one in the bundle which can be identified, namely the Warwickshire police authority, and other authorities take independents into account. The Home Office advice your Ladyship referred to in the judgment and plainly the Home Office have taken a particular view.

So, in my respectful submission, that constitutes a compelling reason. For if the position is as it is in consequence of the judgment that unlawful action on the part of those authorities exists, it is a matter which ought properly to be considered in the light, especially of the Home Office guidance, by the Court of Appeal. So, my Lady, I ask for permission on both of those grounds.

MRS JUSTICE RAFFERTY: Thank you very much. I am against you, Mr Straker, on both grounds. Is there anything else with which I can help counsel?

MR PARDOE: My Lady, no.

MR STRAKER: My Lady, I am sorry to intrude. There is one matter I should just touch upon. It is this. The Council would hope to lodge the necessary papers with the Court of Appeal to seek permission. They would hope to do that by the end of this week, bearing in mind that they have, according to the rules, 14 days capable of being extended by the court. I would ask that that be extended to 28 days in consequence of the Christmas and New Year holidays. It is hoped, as I say, that we will do it by seven, but I just want to have the guard against that possibility.

MRS JUSTICE RAFFERTY: Do you need 28 or 21?

MR STRAKER: I suspect 21 would be sufficient. I would just like to have a little more leeway than the 14 because of Christmas and the New Year. Seven days in addition to the 14 would be appropriate.

MRS JUSTICE RAFFERTY: An extension to 21 days.

MR STRAKER I am much obliged, my Lady.

(Court Adjourned)