QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| R (on the application of ALBERT BEALE and LESLEY CARTY)
|- and -
|LONDON BOROUGH OF CAMDEN
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr Ashley Underwood QC and Mr Kelvin Rutledge (instructed by the Borough Solicitors Branch) for the defendant
Crown Copyright ©
Mr Justice Munby :
"5.1 Key aims of the ALMO initiative are to give tenants the opportunity to play a greater role in the management of their homes, and to ensure that services are responsive to their needs. … Tenants should have been closely involved throughout the appraisal process leading to the choice of the ALMO option. Local authorities seeking ALMO funding and s 27 approval must … show that the ALMO proposals have the support of a majority of tenants.
5.2 Authorities may choose to ascertain tenants' views through a ballot, though the Secretary of State is prepared to accept other clear evidence of their support. To ensure an informed choice, authorities should give to all tenants and leaseholders information about and opportunity to comment on:
- the reasons for setting up the arms length body;
- the functions to be transferred and the continuing role of the local authority;
- the composition and status of the arms lengthy body and its Board, including the selection and role of the tenant Board members;
- tenants' and leaseholders' rights;
- performance standards for the arms length organisation."
Question 11 in the questionnaire set out in Annex C to the ODPM Guidance reads in material part as follows:
"Please summarise how tenants and leaseholders of dwellings for which the ALMO will be responsible have been consulted about the ALMO proposals. Please state what the Council has done to establish whether the majority of tenants and leaseholders fully appreciate the implications of these proposals … "
"1 This government wants to privatise council housing – ALMOs are a key part of their strategy.
2 Camden already has nearly ?rds of the money it needs – there is no urgent reason to go ALMO.
3 Elected councillors will no longer be accountable for what happens to our homes. It's a recipe for excuses."
"Failure … to provide to its tenants and leaseholders any or any sufficient information setting out the facts and/or arguments against the transfer of the management of … Camden's housing stock to an [ALMO]"
and also of its:
"Proposal … to ballot tenants and leaseholders with the question: "Camden Council proposes to set up a Council owned Arms Length Management Organisation (ALMO) to manage and improve its housing. Do you agree with this proposal: Yes/No?"
"[Camden] has failed to date to carry out a lawful consultation exercise or to provide voters with such information as is reasonably required to enable them to exercise an informed choice in the forthcoming ballot on the proposed ALMO"
"The proposed ballot question is biased and unlawful."
The claimants also sought, but McCombe J on 24 November 2003 declined to grant and the claimants no longer seek, an injunction:
"preventing [Camden] from balloting tenants and leaseholders until:
(a) a two-sided A4 document containing the views of those opposing the ALMO, printed in one colour and black … has been circulated by [Camden] to all council tenants and leaseholders in Camden;
(b) the ballot question has been amended so as to delete the words "Council owned" and "and improve"."
The consultation process
"Camden is required to ensure that the case against the ALMO is made available to all voters and is not in the process so marginalised that it has no realistic prospect of being noticed or given any serious consideration … the information provided to voters should be balanced".
Ms Markus stresses that the claimants' challenge is not limited to a challenge upon the rationality of Camden's view that the consultation process is fair. It also rests on complaints that the consultation process has been unfair and unlawful.
The consultation process – the legal context
i) The decision of the Supreme Court of Canada in Libman v The Attorney General of Quebec  3 SCR 569.
ii) The decision of the Court of Appeal in R v North and East Devon Health Authority ex p Coughlan  QB 213.
iii) The ODPM Guidance and associated ministerial statements.
iv) The Code of Recommended Practice on Local Authority Publicity issued by the SoS on 15 August 1988 (DOE Circular 20/88) and revised by the SoS on 2 April 2001 (DETR Circular 06/2001) ("the Code").
v) The decision of the District Auditor (Mr Richard Lott) dated May 2003 in relation to objections under sections 17 and 18 of the Audit Commission Act 1998 in respect of a LSVT by Bath and North East Somerset Council.
I shall deal with each of these in turn.
"Thus, the Court must first ask whether the objective the statutory restrictions seek to promote responds to pressing and substantial concerns in a democratic society, and then determine whether the means chosen by the government are proportional to that objective. The proportionality test involves three steps: the restrictive measures chosen must be rationally connected to the objective, they must constitute a minimal impairment of the violated right or freedom and there must be proportionality both between the objective and the deleterious effects of the statutory restrictions and between the deleterious and salutary effects of those restrictions."
" … The principle of electoral fairness flows directly from a principle entrenched in the Constitution: that of the political equality of citizens. If the principle of fairness in the political sphere is to be preserved, it cannot be presumed that all persons have the same financial resources to communicate with the electorate. To ensure a right of equal participation in democratic government, laws limiting spending are needed to preserve the equality of democratic rights and ensure that one person's exercise of the freedom to spend does not hinder the communication opportunities of others. Owing to the competitive nature of elections, such spending limits are necessary to prevent the most affluent from monopolizing election discourse and consequently depriving their opponents of a reasonable opportunity to speak and be heard. Spending limits are also necessary to guarantee the right of electors to be adequately informed of all the political positions advanced by the candidates and by the various political parties. Thus, the principle of fairness presupposes that certain rights or freedoms can legitimately be restricted in the name of a healthy electoral democracy. Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions so that election discourse is not dominated by those with access to greater financial resources.
 … spending must be restricted to preserve a balance in the promotion of the options and favour an informed and truly free exercise of the right to vote … the regulation of referendum spending pursues one of the objectives underlying freedom of expression, namely the ability to make informed choices."
"whether or not consultation of interested parties and the public is a legal requirement, if it is embarked upon it must be carried out properly. To be proper, consultation must … include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response."
With that I have absolutely no difficulty but, as Mr Underwood points out, there is nothing here to suggest that consultation involves as a legal requirement an articulation of both sides of the argument. Proper consultation requires sufficient reasons to be given for the particular proposals to enable those consulted to give intelligent consideration and an intelligent response to the proposals. But it is not said that consultation requires sufficient information to be given about any objections to the proposals to enable those consulted to give intelligent consideration and an intelligent response to the objections. On the contrary, as was said in para :
"consultation is not litigation: the consulting authority is not required to publicise every submission it receives … Its obligation is to let those who have a potential interest in the subject matter know in clear terms what the proposal is and exactly why it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."
"The law is entirely clear. Tenants need to be presented with equal information about the pros and cons of the various options for which they are being consulted. That is absolutely the principle that we as government and we as ministers conform to."
Local authorities would no doubt be well advised to have regard to such a clear and apparently authoritative statement of how the SoS interprets and applies the ODPM Guidelines, but I do not see how it can help Ms Markus in the present proceedings. Ministerial statements on public platforms do not have the force of law. The law is made by Parliament. Ministers can make law only if authorised by Parliament to do so. The law is declared by the judges. Statements by ministers as to what the law is are no more determinative of the citizen's rights than similar statements by anyone else. With the greatest of respect to Mr Hill – and I should make clear that it is the claimants, and the claimants alone, who seek to rely upon and make use of what he said – his statement of what he believes the law to be does not assist me. It is either correct or incorrect. If it is correct it adds nothing: if it is incorrect it is for present purposes irrelevant.
"16 Publicity touching on issues that are controversial, or on which there are arguments for and against the views or policies of the council, is unavoidable, particularly given the importance of wide consultation whenever material issues arise. Such publicity should be handled with particular care. Issues must be presented clearly, fairly and as simply as possible, although councils should not over-simplify facts, issues or arguments. Again, it is unlikely that slogans alone will achieve the necessary degree of balance, or capture the complexities of opposing political arguments.
18 Publicity campaigns by local authorities are appropriate in some circumstances: for example, as part of consultation processes where local views are being sought …
19 Legitimate concern is, however, caused by the use of public resources for some forms of campaigns, which are designed to have a persuasive effect. Publicity campaigns can provide an appropriate means of ensuring that the local community is properly informed about a matter relating to the function of the local authority and about the authority's policies in relation to that function and the reasons for them. But local authorities, like other public authorities, should not use public funds to mount publicity campaigns whose primary purpose is to persuade the public to hold a particular view on a question of policy."
"to increase public awareness of the services provided by the authority and the functions it performs; to allow local people to have a real and informed say about issues that affect them; to explain to electors and ratepayers the reasons for particular policies and priorities; and in general to improve local accountability."
"shall maintain such arrangements as it considers appropriate to enable those of its secure tenants who are likely to be substantially affected by a matter of housing management to which this section applies –
(a) to be informed of the authority's proposals in respect of the matter, and
(b) to make their views known to the authority within a specified period;
and … shall, before making any decision on the matter, consider any representations made to it in accordance with those arrangements."
i) arrangements which permit tenants to inform themselves of local authority's proposal will satisfy section 105(1)(a);
ii) the court can interfere only if it is satisfied that no reasonable council could deem the arrangements in fact adopted to be appropriate.
I agree that ex p Morris is indeed authority for both these propositions.
"Mr Howell submitted to the judge that these arrangements were inadequate and that tenants could not simply be left to look at public notice boards. The judge described the submission as artificial. He said that tenants do not live in isolation but within a community in which information spreads by conversation and neighbourly exchange, particularly where shared interests are at stake. He defined the duty of the local authority and the function of the court in his judgment in these terms:
"The duty on the local authority under section 105 is not to provide arrangements that are ideal or the best that can be devised; it is to provide arrangements which, in its judgment, are appropriate to enable the exchange of information and views with its secure tenants on the matters specified to take place. It is not for the Court to decide what arrangements it would have put in place had it been the local authority. The court's function is to review the arrangements which the local authority considered appropriate. That means that the court can only interfere if it is satisfied that no local authority could reasonably have thought that the arrangements in question would in the locality in question enable secure tenants to be informed and to make known their views about the matters covered by [Section 105]."
" ..... I am quite unable to say that no local authority could reasonably have thought the arrangements in question would in the locality in question enable secure tenants to be informed and to make known their views about the matters covered by the section."
In this court Mr Howells' argument concentrates on the arrangements to enable tenants to be informed. Whilst he acknowledges the contrast between this obligation and the stricter obligation to inform each tenant by letter contained in other sections of this Act, he still says that the arrangements must be such as to enable each tenant to receive the relevant information and not merely such as to enable the tenant to inform himself. The tenants' role is that of passive recipient of information and not active enquirer after information. That seems to me close to a submission that the duty on the council is to inform each tenant. The Section does not go nearly that far. It only requires arrangements to enable the tenant to be informed and, in my judgment, that includes arrangements that enable the tenant to inform himself …
Finally, Mr Howell says that there is no evidence of a specific determination by the council that the arrangements are appropriate. That submission seems to me unduly legalistic. The council implicitly determine whatever arrangements they in fact put in place. The sole question for this court is whether the arrangements are such that no reasonable council could deem them appropriate. I share the judge's conclusion and his reasoning."
The consultation process – the facts
"Camden Council believes that the ALMO is the best choice. We believe it offers you a better future."
"If the vote is 'No' and the ALMO doesn't happen, we won't get the extra public money to do up your kitchens and bathrooms. If the vote is 'Yes' and the ALMO does happen, tenants will get the new kitchens and bathrooms, and everyone will get all the other improvements as well."
i) In the first place there was, as I have already sought to explain, no legal obligation on Camden to do so.
ii) Secondly, amongst the materials that Camden has in fact sent out to its tenants and leaseholders is a document headed "The Camden Defend Council Housing Campaign has vigorously publicised its "eight reasons to reject an ALMO". We have set these out below and put the Council's position on each one." Far from that document being, as Ms Markus suggested at one point, a "parody" of Camden DCH's case, the "eight reasons" have been accurately quoted from Camden DCH's own website. Camden's response is to treat each of the eight points seriously and to supply a reasoned response. Its tone is not one of dismissive ridicule or contempt. The claimants and Camden DCH may not agree with – they may not like – Camden's response, but that is neither here nor there. The fact is that Camden has chosen to engage with and to address the case against an ALMO, and to do so explicitly and accurately by reference to the way in which that case has been publicised by Camden DCH.
iii) Thirdly, Camden's materials have in any event to be evaluated in the context of the wider debate which has been taking place in relation to Camden's proposals, a debate which, as I have said, has been exceptionally wide-ranging both in the scope of the issues argued and in the coverage achieved. If and insofar as Camden was under any obligation to give "air time" to the views of Camden DCH or other objectors, then Camden's materials have, as Mr Underwood put it, to be evaluated in the light of all the materials that were 'out there'. Camden, he says, was entitled to conclude that the totality of the materials and information available to its tenants and leaseholders, including but not limited to the materials put out by Camden itself, was more than adequate to ensure that the electorate was fairly and properly informed about both sides of the debate. I agree.
The consultation process – conclusion
The ballot question