QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| (1)DEVON COUNTY COUNCIL
(2)NORFOLK COUNTY COUNCIL
|- and -
|SECRETARY OF STATE FOR COMMUNITIES AND LOCAL GOVERNMENT
|(1) EXETER CITY COUNCIL
(2) NORWICH CITY COUNCIL
(instructed by Knights Solicitors) (1) Devon County Council
Mr Straker QC and Mr A Sharland
(instructed by Knights Solicitors) for (2) Norfolk County Council
Mr R Drabble, QC,
Mr S Grodzinski and Mr T Buley (instructed by Treasury Solicitors) for the Secretary of State
Mr J Goudie, QC and Mr P Oldham, QC (instructed by solicitors for Exeter City Council and Norwich City Council) for the Interested Parties
Hearing dates: 28th and 29th April 2010
Crown Copyright ©
Mr Justice Ouseley :
The Local Government and Public Involvement in Health Act 2007
"(5) In responding to an invitation under section 2, or complying with a direction under that section, an authority must have regard to any guidance from the Secretary of State as to-
what a proposal should seek to achieve;matters that should be taken into account in formulating a proposal."
The decision-making process
"3.1 The criteria with which any proposal must conform are:
the change to the future unitary local government structures must be:
affordable, i.e. that the change itself both represents value for money and can be met from councils' existing resource envelope; and
supported by a broad cross section of partners and stakeholders; and
those future unitary local government structures must:
provide strong, effective and accountable strategic leadership;
deliver genuine opportunities for neighbourhood flexibility and empowerment; and
deliver value for money and equity on public services."
"The Secretary of State is currently prepared to implement the proposals that she is putting forward for stakeholder consultation if, but only if, when she comes to take final decisions she remains satisfied having regard to all the further information received during the consultation that the proposals meet the criteria, and that the overall use of reserves as then estimated is affordable."
"Each of those criteria specify an outcome that either the change to unitary structures must achieve, or that the new unitary structures once established must deliver. Any assessment of the proposals against the criteria is, therefore, necessarily a process of judgement, reaching a view as to the likelihood of a proposal if implemented achieving the outcomes specified by each of the criteria."
"We are seeking your views on the extent to which the proposals, if implemented, will achieve the outcomes specified by the criteria in our Invitation (see paragraph 22 above). In particular we would welcome partners' and stakeholders' views as to the extent a proposal would, in their opinion, if implemented, deliver strong effective and accountable leadership, deliver genuine opportunities for neighbourhood flexibility and empowerment; and value for money and equity on public services."
"After the stakeholder consultation, we will consider very carefully all the representations that we have received. Proposals will proceed to implementation if, and only if, when we take our final decisions, we remain satisfied that they meet the criteria, and that the overall use of reserves remains affordable, having regard to the prevailing fiscal position and the risks around the estimated costs of implementation."
"What exactly do you want consultees to comment on? The extent to which the proposals, if implemented, will achieve the outcomes specified by the criteria in the invitation to Councils (published alongside the Local Government White Paper)."
"After this consultation, we will consider very carefully all the representations that have been received. Proposals will proceed to implementation if, and only if, when we decide which proposals should proceed to implementation, we remain satisfied that they meet the criteria, and that the overall use of reserves remains affordable, having regard to the prevailing fiscal position and the risks around the estimated costs of implementation."
"To provide the advice requested, and assess and make an alternative proposal sought by the Secretary of State, will involve the Committee having to reach a judgement about the capacity of particular unitary arrangements, if they were to be implemented, to deliver specific outcomes on the five criteria."
"2.53 The Secretary of State's guidance to us makes clear that, whatever pattern of unitary local government we advise should be established in any area, it must be affordable. In particular, the transitional costs of any change must be capable of being paid back within five years and, of particular concern to residents, all costs associated with structural change must be met locally without increasing council tax for the specific purposes of meeting transition costs.
2.54 The criteria set out in the guidance, including that of affordability, are the same as those used to judge the viability of the bids for unitary status submitted to the Secretary of State following publication of the 2006 Local Government White Paper. The Secretary of State's requirement at that time was that any proposals for unitary status should be made on the basis of existing local authority administrative boundaries, or amalgams of them. Accordingly, 'bidding' authorities would have found the issue of ensuring the costs of change were met without any increase in council tax relatively straightforward to address."
"Where the Boundary Committee makes one or more alternative unitary proposals for an area, the Secretary of State will reach a view as to whether or not he shares the Boundary Committee's judgement about each alternative unitary proposal's capacity in aggregate, if it were to be implemented, to deliver the outcomes specified."
"Having identified those unitary proposals – either the original unitary proposal or any alternative unitary proposals made by the Boundary Committee and modified as the case may be – that in his judgement would have the capacity to deliver the outcomes specified by the criteria, the Secretary of State will then reach a judgement on whether to implement any of them. In deciding which, if any, of these unitary proposals should be implemented he will consider the merits of each proposal, as a whole, having regard to the extent to which each has the capacity to deliver the long-term outcomes.
The importance of a unitary proposal delivering the long-term outcomes was recognised by the Secretary of State in the approach adopted when previously taking statutory decisions about unitary proposals in December 2007 and early 2008."
"However, she considers in this case that there are compelling reasons to depart from the presumption that where a unitary proposal does not meet all five criteria it should not be implemented. Her reasons are two fold.
First, she considers that the Government's priorities today are above all for jobs and economic growth. Local government has an essential role to play in delivering these economic priorities, and this role is of a significance that could not be contemplated in 2006 when the criteria were developed. The Minister for Local Government believes, as has been made clear to her by the representations received, that a unitary Exeter would be a far more potent force for delivering positive economic outcomes both for the city and more widely than the status quo two-tier local government.
Secondly, with today's approach to developing public service delivery, as envisaged by the Command Paper – "Putting the Frontline First" – announced by the Chief Secretary to the Treasury on 7 December 2009, including the Total Place approach, the Minister for Local Government considers a unitary Exeter could open the way for improvements to the quality of public services. She considers that through innovative shared services and partnership arrangements the public service for the city will be able to be tailored to the needs of the urban area whilst still being able to achieve the economies of scale that are possible under the countrywide delivery of such services as adult social care and children's services.
We are clear that the decisions that we have taken are in the best interests of the people for the areas concerned. They recognise the genuine local appetite for unitary government in the cities of Exeter and Norwich. They provide a robust framework for the future prosperity of those cities and surrounding county areas. They open the way to better and more efficient public services. The potential will be delivered through the commitment and collaboration of all councils involved – this is what local people will rightly expect."
"Total Place takes a 'whole area' approach to delivering public services in a geographical location, looking at how to deliver better services at less cost, through effective collaboration between local organisations and leadership. The Total Place approach, therefore, is one which recognises that two or more service providers should be able to collaborate through partnership arrangements enabling them together to provide a service that can realise benefits such as economies of scale that would be available if there was a single service provider, whilst at the same time reflecting the particular priorities of the individual service providers."
"could open the way for improvements to the quality of public services. The Total Place approach is transforming the possibilities for local public service delivery. Total Place takes a "whole area" approach to delivering public services in a geographical location, looking at how to deliver better services at less cost, through effective collaboration between local organisations, led by local authorities. In the case of Exeter and Devon, and Norwich and Norfolk, it means that there can be the best of both worlds. There will be one local government leader able to provide strong strategic leadership for the city; and the more rural remaining two-tier area stands to have a stronger voice through a more focused county council, working closely with the rural districts."
"Any case for further consultation can be justified only if some who might have expected to have been consulted have not been, or those consulted have not been given sufficient information to comment on the proposals. The Government is clear that neither of these circumstances arises."
"The range of comments received demonstrates that consultees had more than sufficient information to comment fully on the proposals. Many focused their comments on the merits of the two-tier status quo arrangements, without necessarily referring to the criteria or to how particular unitary proposals matched up against those criteria. Others commented, again without necessarily referring to all or any of the criteria, about how any change to unitary structures was unnecessary as the two-tier system as modernised was delivering the same benefits as could be expected from unitary local government. Many referred to the impact of the current economic climate, some seeing this as reasons for not implementing unitary proposals, others seeing this as a reason for so doing.
Moreover, the longer-term outcomes specified by the strategic leadership and value for money services criteria are closely interconnected with questions about how the unitary structures would impact on the local economy and how the new Total Place approach could affect the delivery of local public services. Some when commenting referred to economic questions and collaborative partnership working characterised by the Total Place approach."
"The Government also accepts that the Norwich proposal, before the new Total Place approach to service delivery is taken into account, does not meet the value for money on services criterion. But considered on their merits, the Government is clear that the risks of a slightly longer payback period are outweighed by the benefits for the local economy that unitary councils would bring, benefits the likelihood of which is supported not least by the evidence heard in Monday's debate, and that with the new Total Place approach, Norwich will be able to shape and jointly deliver high-quality services across the whole area, with the economies that brings, but which also meet the diverse needs of urban and rural communities."
"Moreover, any departure from the criteria when taking your statutory decisions also raises feasibility, as well as value for money, concerns. Whilst there is no statutory basis for the criteria, there is a legitimate expectation that they will be the basis of your decisions. Your proposed approach of implementing a unitary Exeter and Norwich, and not implementing a unitary council for Suffolk would be a departure from the criteria, and whilst I recognise you could adduce your reasons for this as public policy grounds for not meeting the legitimate expectation, my clear legal advice is that the risk of decisions for a unitary Exeter and Norwich, and indeed for not taking action on Suffolk, being successfully challenged in judicial review proceedings is very high. You have been advised that there is every likelihood of such judicial review proceedings being commenced."