England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		7 February 2013

MR JUSTICE UNDERHILL:

INTRODUCTION

1. Section 33 of the Welfare Reform Act 2012 abolishes, with effect from 1 April 2013, the current system of council tax benefit. Council tax benefit is a central government benefit and wholly funded centrally, albeit administered locally. The amount of benefit varies according to the claimant's means, but in the appropriate case might cover the entire costs of their council tax liability - so-called 100% benefit. In place of council tax benefit local authorities are required, by amendments to the Local Government Finance Act 1992 effected by the Local Government Finance Act 2012, to introduce their own "Council Tax Reduction Schemes" ("CTRSs") under which claimants satisfying the specified criteria as to means will pay council tax at a reduced rate. Such a reduction is not perhaps a "benefit" in the same sense as under the previous central scheme, but I will in this judgment for convenience sometimes refer to it as such.
2. CTRSs will be funded by central government, but only at 90% of the level at which council tax benefit was paid in the current year, that is to say 2012-13. Local authorities will thus have in practice either to pay some, or all, claimants less by way of council tax reduction than they received previously by way of council tax benefit, or to fund the difference from their own resources either by reducing expenditure or by raising income, most obviously by raising the rate of council tax itself or by recourse to their reserves, if any.
3. Authorities are required to decide on their own schemes by 31 January 2013. If they fail to do so by that date a default scheme operates, which essentially replicates the terms on which council tax benefit was paid under the current central government scheme.
4. Regulations made under the Local Government Finance Act 1992 (as amended) set the parameters for the terms of CTRSs. The only point which I need to mention for present purposes is that it is required that pensioners should continue to receive the same level of benefit as previously.
5. The defendant, the Council of the London Borough of Haringey, resolved on 17 January to adopt a CTRS which accommodated the shortfall in funding entirely by a reduction in the level of benefit. Claimants of working age would be relieved from council tax liability at a level of just over 80% of council tax benefit levels in the current year. That 20% reduction was the product of three factors: first, the 10% reduction in central government funding; second, the requirement in the regulations that pensioners continue to enjoy reductions at the equivalent level to their previous benefit; and third, a predicted increase in the number of claimants as compared with the current year. As regards that third point, the government has made it clear that any such increases in the number of claimants would have to be funded by local authorities. Thus claimants who had previously had 100% benefit will now have to pay a sum by way of council tax, albeit only approximately 20% of what would otherwise be their liability. (About one third of householders in Haringey qualify for council tax benefit at present. Of those about two thirds, 23,000 households, receive 100% benefit.) There are some other features of the scheme adopted by the Council which represent changes from the previous position, namely a reduction in the amount of capital above which claimants are not entitled to benefit, the removal of entitlement in cases where the benefit is less than £1 per week, and a reduction in the maximum period that any claims for CTR can be backdated. However, those elements are not material for present purposes.
6. These proceedings are brought to challenge the lawfulness of that decision. As will be apparent, they have come on very quickly. The claim was lodged on 24 January, ie within a week of the Council's decision. Expedition was sought not simply on the basis that the new scheme would come into force on 1 April, but more specifically because of an impending deadline of 15 February for the Council to apply for a transitional grant which would substantially reduce the impact in the government central funding, but which would not be available if the current decision remained in place: I give more details of that below. On the same day Foskett J ordered a rolled-up hearing, to be listed in the week beginning 4 February.
7. As I understand it, the impetus for the proceedings came from a local clergyman and poverty campaigner, who enlisted the assistance of Irwin Mitchell. The original claimant was a member of his congregation, who was granted anonymity by Foskett J and to whom I will refer as "M". An unexpected problem has arisen with her legal aid, and with the consent of the Council I allowed another claimant to be joined and made a similar anonymity order: I refer to her as "S". M and S are both single mothers. M has three children and S four. Both are at present in receipt of 100% council tax benefit. They are on very tight budgets, and the sum of approximately £4 per week which they will have to pay by way of council tax under the new scheme is, they say, simply unaffordable. Strictly speaking, only S was represented before me at the hearing, though that is frankly a formality.
8. The case has been very well prepared over a short period, and I have had the advantage of helpful skeleton arguments from Mr Ian Wise QC and Mr Jamie Burton for the claimants, and from Mr Clive Sheldon QC and Miss Heather Emmerson for the Council. Because of the urgency of the matter I have myself only had a short time to prepare this judgment, and I have accordingly limited myself to the essential points.
9. The claimant originally pleaded two bases for her challenge, namely Tameside irrationality and failures by the Council in its duty to consult; but only the latter ground is now pursued. It is convenient to say at this stage that I regard that ground of challenge as arguable, and I accordingly give permission to apply for judicial review.

THE STATUTORY PROVISIONS

10. The relevant statutory provisions are to be found in the Local Government Finance Act 1992 (as amended). Section 13A (2) and (3) reads as follows:

"(2)Each billing authority in England must make a scheme specifying the reductions which are to apply to amounts of council tax payable, in respect of dwellings situated in its area, by—

(a)persons whom the authority considers to be in financial need, or

(b)persons in classes consisting of persons whom the authority considers to be, in general, in financial need.

(3)Schedule 1A (which contains provisions about schemes under subsection (2)) has effect."

11. Turning to Schedule 1A, paragraph 3(1) reads as follows:

"Before making a scheme, the authority must (in the following order)-

(a) consult any major precepting authority which has power to issue a precept to it,

(b) publish a draft scheme in such manner as it thinks fit, and

(c) consult such other persons as it considers are likely to have an interest in the operation of the scheme."

THE FACTS

12. The story starts with a decision by the Council's Cabinet on 10 July 2012 to adopt a proposal for consultation with the Greater London Authority ("the GLA"), being the precepting authority with whom it was necessary to consult first, "that will reduce CCTB payments for all claimants in line with the reduction in Government grant". That was in essence, if rather over-summarily described, the proposal which was eventually adopted. The paper to Cabinet made it clear that other options had been considered. Part 7 of that paper reads as follows:

"7.1 We have considered a number of options for the overall scheme. However, these options have not been taken forward because they could have a disproportionate impact on some claimant groups over others or result in a shortfall in the Council's budget which would have to be met by reductions in services.

7.2 These include:

•    Protecting certain vulnerable groups in addition to pensioners

•    Protecting band A - C properties

•    Protecting claimants on 100% CTB

•    Protecting claimants who are working but on low income.

•    Absorbing the cost

•    Stagger the introduction of the scheme."

13. Following consultation with the GLA, the Council produced a draft scheme, and on 29 August 2012 it produced a consultation document. The document is four pages long and expressed in straightforward terms. Clearly considerable thought had been given to making it accessible and focused on what the Council regarded as the key points. I need not set it out in full. The particular points that I need to mention are as follows:

(1) On the first page, which headlines the nature of the change in the system, it is explained that council tax benefit is being replaced by local authority CTRSs and that "the Government will significantly cut funding for the new benefit". The document then says:

"Early estimates suggest that the cut will leave Haringey with an actual shortfall in funding of around 20%. This means Haringey claimants will lose on average approximately £1 in every £5 of support they currently receive in council tax benefit."

(2) The next two pages contain more detail and include a summary of the Council's proposed scheme. Under the heading "What's Changing?" the document says:

"At present the Government gives us the money we need to fund council tax benefit in Haringey. From next April we must implement a new council tax Reduction Scheme. We'll receive much less money for the new scheme and once we factor in the increasing number of people claiming benefit and the cost of protecting our pensioners, we estimate the shortfall could be at much as £5.7m next year and this could rise in later years.

Although pensioners will move on to the new council tax Reduction Scheme, they will receive the same amount of support they would have received under the current council tax Benefit regulations.

That means that the introduction of a local council tax Reduction Scheme in Haringey will directly affect the assistance provided to everyone below pensionable age that currently receives Council Tax Benefit.

The Government has also told us that any increase in the number of claims will have to be paid for locally."

(3) The explanations of the Council's proposals starts:

"Our preferred approach is to keep the current rules to decide how much support the claimants should receive. Our proposed Local council tax Reduction Scheme seeks to apply the Government cut in council tax funds as fairly as possible. We believe the fairest way to do this is to ..."

It then proceeds to identify the four proposed changes. As I have already said, however, only the first is significant for present purposes. That is summarised as follows:

"Reduce payments to all working age claimants by an equal flat proportion in line with the reduction in Government funding. This is expected to be approximately 20%. This means that every household of working age would have to pay something towards their council tax bill."

Having summarised the other changes the text continues:

"These proposed changes will spread the Government's reduction in funding across everyone of working age who qualifies for a council tax reduction.

We also have to decide if certain groups should be protected from any changes we make and continue to get the same level of support as they do now. Doing this would mean that other claimants would get even less support.

Our proposal is subject to consultation. We may need to adjust our proposals depending on future funding announcements and significant changes in claimant numbers."

(4) There follows a table showing the Council Tax payable in each band for those currently on 100% benefit on the basis of, as it is explained, the predicted 20% shortfall. The weekly figure for Band B residents is £4.46.

(5) There follows a page about the mechanics of the consultation. It is made clear that consultees can respond in a variety of ways, including completing the questionnaire which forms part of the document: see below.

(6) The final page of the document, apart from an equal opportunities monitoring form, is a questionnaire. Question 1 reads as follows:

"To what extent do you agree we should apply the Government's reduction in funding equally to all recipients of working age?"

It is then followed by a short explanation as follows:

"This means that every household of working age will have to pay something towards their council tax bill."

There are then five boxes ranging from "strongly agree" to "strongly disagree". The next three questions relate to the other less significant elements in the proposal. Question 5 asks:

"We have to decide whether or not certain groups should be protected from any changes we make and continue to get the same level of support as they do now.

Should some groups of people continue to get the same support as now even if doing this would mean other claimants would get less support?"

There were then three boxes for "Yes, "No" and "Don't know", with a box for groups requiring protection to be identified in the case of a "yes" answer. Question 6 takes the form of a box with the rubric:

"Please use the space below to make any other comments about our draft council tax Reduction Scheme."

14. That document was hand-delivered to all 36,000 households in Haringey who were in receipt of council tax benefit. It was also published on the Council's website and displayed at the Council's main offices, customer service centres, libraries and in the two Citizens Advice Bureaux in the borough. It was discussed at area forums and private landlord forums and in the "Homes for Haringey Leaseholder Forum". There were posters advertising the consultation and Council officers attended area forum discussions and meetings to inform attendees about the proposed changes. Members of the consultation team visited a number of libraries to promote consultation and answer questions.
15. The Council received about 1400 responses to the consultation, mostly, but not entirely, in the form of completed questionnaires. The answers were analysed and a report prepared. I need not for present purposes seek myself to summarise the responses. It is sufficient to say that views were roughly evenly split on the question of whether there should be a flat-rate reduction for all those entitled to benefit. One theme which did emerge from the responses was that there should be special protection for households where there was a person on disability benefit.
16. During the course of the consultation there was a further development which is of central importance for these proceedings. On 16 October the government announced that a further £100 million would be made available under a "Transitional Grant Scheme" ("TGS") to councils whose CTRSs incorporated various features which the government regarded as "best practice". The initial announcement by Baroness Hanham in the House of Lords summarised the conditions for eligibility for the grant as follows:

"The voluntary grant will be available to councils (billing and major precepting authorities) who choose to design their local schemes so that:

•    those who would be on 100 per cent support under current council tax benefit arrangements pay between zero and no more than 8.5 per cent of their council tax liability;

•    the taper rate does not increase above 25 per cent;

•    there is no sharp reduction in support for those entering work - for claimants currently entitled to less than 100 per cent support, the taper will be applied to an amount at least equal to their maximum eligible award."

I need not seek to explain the second two bullets, because for present purposes it is the first which is the most significant. What it does is to incentivise councils to temper the wind to the shorn lamb in the shape of those least able to afford any significant council tax payment. Two days later a circular was issued giving more detail. It appended an annex giving the figures that would be available by way of grant to each local authority. The amount available to Haringey, ignoring the precept element payable to the GLA, would be £706,000.

17. The TGS was discussed between the Council's lead Cabinet Member for Finance, Councillor Greenberg, and its Head of Revenue Benefits and Customer Services, Paul Ellicott. They took the view that an application under the scheme should not be made - essentially, though there were other factors, because the £700,000 offered was far less than the loss of revenue that would be entailed in restricting to 8.5% the council tax collected from those currently paying no council tax. The difference would have to be found from other measures of the kind which the Cabinet had already considered and decided not to pursue (see para 11 above).
18. A report on the proposed CTRS was prepared for the full Council meeting in January. The scheme proposed was essentially that which had gone to consultation, save that special protection was now incorporated for those on disability benefit. The report included the report which had been prepared on the consultation responses. It also included an explanation of why it was not recommended that the Council should apply for a grant under the TGS.
19. Shortly before the Council was due to meet Irwin Mitchell wrote to it, setting out in considerable detail what was, in substance, the case initially pleaded in these proceedings, that is (a) that the proposed scheme was irrational and (b) that the consultation had not been fair. They made it clear that a legal challenge would be made if the Council were to adopt the scheme in its presently proposed form. Officers took legal advice and produced a substantial "addendum report" which sought to rebut Irwin Mitchell's points. Both the report and the addendum report were fully, and apparently hotly, debated by the Council at its meeting on 17 January. The decision was, as I have said, to adopt the CTRS in the form proposed.

THE CHALLENGE

20. It was common ground between counsel that the general principles applicable to a consultation exercise of the kind with which we are here concerned are as stated in the well-known judgment of the Court of Appeal in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213, at paragraph 108 (page 258), restating the so-called "Gunning criteria" (see London Borough of Brent ex parte Gunning (1985) 84 LGR 168). The passage reads as follows:

"It is common ground that, 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 be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken..."

21. I have also been referred by Mr Wise to the recent decision of the Court of Appeal in R (Royal Brompton and Harefield NHS Foundation Trust) v the Joint Committee of Primary Care Trusts [2012] 126 BMLR 134 ([2012] EWCA (Civ) 472). He referred me in particular to the restatement and expansion of the relevant principles at paragraphs 9 to 14. The most significant for the purpose of the issues before me is paragraph 10. This reads as follows:

"Another aspect of fairness is that it must present the available information fairly. In this case, because the JCPCT had to collect information from the centres to present the available information it would have to make clear to the centres what information it needed. A further aspect of fairness lies in the presentation of the information on which the views of consultees should be sought. The options for change must be fairly presented. Nonetheless, a decision-maker may properly decide to present his preferred options in the consultation document, provided it is clear what the other options are: Nichol v Gateshead Metropolitan Borough Council ...1988) 87 LGR 435.[[1988]COD 97]"

22. I have been referred to various other authorities relating to requirements of proper consultation, but I come to them in due course.
23. Mr Wise submits that the Council's consultation was in breach of the second Gunning criterion, namely the provision of sufficient information about the proposed scheme to allow for intelligent consideration and an intelligent response. He identified three failings, which I take in turn.
24. First, he points out that the consultation document proceeded on the assumption that the entire shortfall in funding produced by the factors to which I have referred had to be met by reductions in the amount of benefit, so that the only question was whether the pain should be spread evenly or differentially between different groups. There were in fact, he submits, obvious alternatives, as had been identified in the initial paper to Cabinet to which I have referred, and those should have been expressly alluded to and basic information about them given. He referred in particular to the passage from the judgment in the Brompton case which I have set out above.
25. Mr Wise disavowed any submission that the Council was obliged to produce a series of fully worked-out alternative options, but he said that it was wrong to proceed, in effect, on the basis that there was no alternative at all. Failure to provide even minimal information about, for example, the possibility of reducing Council expenditure, or the use of the Council's reserves, meant that many consultees at least would fail to appreciate that those were legitimate available options. I asked him whether it was his position that a question should have been included in the questionnaire which allowed consultees to express a preference for one or more of those alternatives, and he said that it should.
26. Mr Sheldon submits that that approach is wrong in principle. What the Council was obliged by paragraph 1(3) of Schedule 1A to consult about was its proposed scheme - that is, a scheme which it was obliged to have already produced in draft. What that meant that it had to do was to provide the information and reasoning material to that scheme, which it was not suggested that it had failed to do. It was not obliged to provide its reasons for not proposing a different scheme, or information about other alternatives which were not being pursued. In any event, however, the alternatives suggested by the claimant were not of such a character that they needed to be specifically drawn to the attention of consultees or information given about them. It was simple common sense that the Council could, if it chose, fund the shortfall from, for example, cuts in expenditure or an increase in the rate of council tax. Those points could be made by consultees without their having been explicitly trailed in the consultation document, and without particular information being made available - though if consultees wanted to make more detailed alternative proposals the necessary figures about the general levels of council expenditure, or the level of reserves, were a matter of public record and easily ascertainable. The consultation document did not preclude the making of such points, and many consultees in fact did so, either by letter or by making use of box 6 in the questionnaire. Mr Ellicott in his witness statement for these proceedings listed a large number of such comments.
27. I do not accept Mr Sheldon's submission in its entirety. While he is right that the Council was entitled to focus on its own proposal and the choices that arose within that context, in my judgment consulting about a proposal does inevitably involve inviting and considering views about possible alternatives. I think that it would have been better if the consultation document had at least identified the alternatives which had been considered and rejected, with headline reasons - very much in fact as the original paper to Cabinet had done (see paragraph 11 above). That would not involve having to develop the alternatives in any detail, as Mr Wise acknowledged.
28. However, I do not consider that the Council's failure to take that course in this case rendered the consultation fundamentally unfair. As Sullivan J observed in R (Greenpeace) v Secretary of State for Trade and Industry [2007] Env LR 29 ([2007] EWHC 3011 Admin), at paragraph 6 (page 648):

"With the benefit of hindsight it will almost invariably be possible to suggest ways in which a consultation exercise might have been improved upon."

But, as he goes on to say, the fact that there may be some, or even many, flaws in a particular exercise does not necessarily mean that it is so procedurally unfair as to be unlawful. I agree with Mr Sheldon that in the circumstances of the present case the existence of alternatives was reasonably obvious, and the form of the consultation did not prevent consultees from appreciating this or from advancing their views. It is also material that inasmuch as the purpose of consultation is to bring to the attention of the decision-maker factors which it might not otherwise have appreciated or of which it may not have seen the force, the alternatives with which we are presently concerned are hardly of the character that the Council members would be unaware of them, and they plainly were not - not least because of Irwin Mitchell's letter and the addendum report.

29. Mr Wise's second ground was that such information as was provided in the consultation document was not accurately and fairly presented. He objected in particular to the quantification of the shortfall as £5.7 million and the calculation of figures on that basis. He said that it is apparent from figures produced in the final report to the Council in January that the correct figure was of the order of only £3.8 million, and in fact £3.3 million if one took into account certain adjustments described as "technical changes" which were formally treated as falling outside the scope of the CTRS but which would in practice nevertheless affect the Council's cash position.
30. However, the consultation document says in terms that the £5.7 million figure was a maximum, and that it was liable to adjustment when more precise figures became available from central government. It was the evidence of Mr Ellicott that such figures only became available in December and that it only then became clear what the actual level of shortfall would be. It is also necessary to compare like figures with like: some figures include the amount collected for transmission by way of precept to the GLA and some do not. Mr Wise in the end acknowledged that he could not say that the figures contained in the consultation document were wrong at the time that they were put forward. In my view that is fatal to this ground. I should say that we did not entirely get to the bottom of the position about the so-called technical changes; but even if these should have been taken into account in the figures included in the consultation document, and were not, it is in my view fanciful to believe that a difference in the overall shortfall of a few hundred thousand pounds would have been material from the point of view of consultees.
31. It was principally in connection with this ground, as I understood it, that Mr Wise sought to draw support from two recent cases in which decisions of public authorities have been held to be unlawful, at least in part, because of defects in the information supplied for the purpose of consultation, namely R (W) v Birmingham City Council 120 BMLR 134 ([2011] EWHC 1147 (Admin)) and R (JM) v Isle of Wight Council 15 CCL Rep 167 ([2011] EWHC 2911 (Admin)). He said that the decisions in those cases showed the high standard which the court imposed in judging the information provided for the purpose of consultation. However, in both cases the nature of what had gone wrong was very different from the facts of the present case, and I did not find them of assistance. It is important to emphasise that cases in this field are fact-sensitive, and the citation of authorities merely for what is said to be illustrative value, rather than for statements of principle, is not helpful.
32. I turn to the third ground, which is that the Council should have notified consultees of the TGS as soon as possible after it was published on 18 October, and invited further responses in relation to it, even if that meant extending the consultation period somewhat. I was given evidence that several other local authorities had taken that course in some form or another, though also that several had not. The parties were not able in the time available to produce any kind of comprehensive analysis, though I am grateful to Mr Burton for a helpful summary of the effect of such material as the Claimant had been able to provide. But Mr Sheldon was able to point out that most, though not, it appears, all, of those authorities who had "re-consulted" were authorities which had decided to modify their proposals in the light of the TGS. He said that that was obviously a different situation from one where, as here, a decision had been taken to maintain the original proposal. In the end the only real value of the material which I was shown is that it demonstrates that it would have been practicable, even if no doubt at the cost of some inconvenience and further expense, to re-consult following the publication of the TGS; and Mr Sheldon did not suggest otherwise. The question is whether the failure to do so rendered the consultation unfair.
33. I have found this ground rather less straightforward than the other two. It seems to me, and Mr Sheldon did not suggest otherwise, that if the TGS had been available at the time that the original consultation document was prepared, fairness would have required that it should be referred to, and an explanation, however succinct, given of why, assuming this was to be the case, the Council did not propose to take it up. But it cannot be the case that fairness requires re-consultation whenever there is a change of circumstances during the course of a consultation, or indeed after it but before the decision in question has been made. There is a real interest in stability and good order in decision-making, which has to be weighed in each case against the value of a fully informed consultation. The circumstances in which consultation may be required are multifarious, and it is difficult to generalise; but I would expect that in most cases the change of circumstances would have to be of a very fundamental character before re-consultation became necessary in the interests of fairness.
34. In this connection I was referred by Mr Sheldon to R (Smith) v East Kent NHS Hospital Trust 6 CCLR 251 ([2002] EWHC 2640 (Admin)), where, after a helpful review of earlier authorities (and in particular R v Shropshire Health Authority, ex parte Duffus [1991] Med LR 119), Silber J said this:

"...there should only be re-consultation if there is a fundamental difference between the proposals consulted on and those which the consulting party subsequently wishes to adopt."

That was a case in which a hospital trust and a health authority consulted on four options but eventually decided to proceed with a fifth, which was different from the others but incorporated elements taken from each of them. Silber J rejected the submission that there should have been a further consultation on that new proposal. The case is in some ways a fortiori to the present because the putative re-consultation related to a new proposal rather than to a change of circumstances relevant to a current proposal.

35. I have come to the conclusion that the TGS did not represent so fundamental a change of circumstances that re-consultation was necessary in the interests of fairness. The first point is of course that it did not lead to a change by the Council in the terms of the CTRS that it was proposing. But nor did it fundamentally change the character of the choice on which the Council was inviting views. The fact that an additional grant would be available if the council tax was held to a maximum of 8.5% for claimants on 100% benefit was no doubt an argument against the proposal for a flat-rate reduction; but it was far from conclusive because it did not come even close to meeting the full cost of departing from the previous proposal. It was simply another element for the decision-maker to put into the balance. It is, I think, a misconception of the nature of consultation, at least a consultation of this character, that consultees have always to be informed about, and their views sought on, every element that may be material to the central decision. Consultees are not themselves decision-makers. The Council itself was of course fully informed about the TGS and debated it thoroughly.
36. I accordingly reject all three of the claimant's grounds of challenge and must dismiss this application.
37. I should mention for completeness that Mr Sheldon had a fallback submission that, even if I were to find that the decision had been unlawful because of the breach by the Council of its consultation obligations, I should refuse to quash it. A peculiar feature of the present case is that if the decision of the Council is struck down it will now be too late for it to conduct a further consultation - which is what in cases of this kind would normally happen - because, under the legislation, if no CTRS is in place by 31 January the default scheme is automatically treated as having been adopted. That would of course suit the claimants very well, because it would mean that they were entitled to a 100% reduction. But it would mean that the Council had no chance of proceeding with its own scheme, albeit after a delay for further consultation. That would produce a result for the claimants, and indeed for other recipients of council tax benefit, disproportionate to the nature of the unlawfulness found. I am bound to say that I saw some force in that submission, but I accept that it is certainly not straightforward, and the economical approach which I am perforce taking to this judgment means that I prefer not to decide the point, given that it is unnecessary for me to do so.