Scottish Court of Session Decisions

Orkney and Shetland Islands Councils each raised separate petitions for judicial review against the Local Government Boundary Commission for Scotland who are the respondents in both petitions. The grounds upon which judicial review is sought, are identical. So, also, is the nature of the remedies sought. The same counsel appeared for both Councils. Nevertheless, there are differences, as one would expect, between the two petitions, although there are many considerations which are common to both. I have decided to give one Opinion referable to both petitions while, at the same time, where necessary, distinguishing between the position of each Council. In that connection I refer to the respondents as "the Commission" and to each of the petitioners as, respectively, "Orkney Islands Council" and "Shetland Islands Council".

By letter dated 22 March 1996 the Scottish Office Development Department wrote to the chief executives of New Councils advising them that the Commission were about to undertake the third statutory review of electoral arrangements and seeking their co-operation in progressing the review so that any revised arrangements could be put into place for the next local government election set to take place in May 1999. I note that it was stated in the letter that the timetable for completing the review was extremely tight if the objective of having revised arrangements in place for the 1999 elections was to be met. The Commission wrote to the Chief Executives of each local government area by letter dated 29 March 1996 announcing that the third statutory review of electoral arrangements was to be carried out as soon as practicable after 1 April 1996 in terms of section 16(2) of, and Schedule 5 to, the Local Government (Scotland) Act 1973 as amended by the Local Government (Scotland) Act 1994. I shall refer hereinafter to the first of these two statutes as "the Act". Each local authority was invited to forward to the Commission for consideration proposals for future electoral arrangements for their local government area in accordance with the guidelines and timetable set out in the letter. Essentially, each local authority was informed of the procedure which was to be followed by the Commission up to and including the stage which has already been reached, of submitting Reports to the Secretary of State. In the letter to the Chief Executive of Shetland Islands Council the Commission at that time proposed that the future pattern of representation for the Council area should provide for 26 electoral wards and a Council of 26. In the case of Orkney Islands Council the Commission at that time proposed that the future pattern of representation should provide for 28 electoral wards and a Council of 28. No explicit explanation is offered in the productions or in the Commission's Reports for the reason why in both cases they reduced these figures substantially by the time they came to report to the Secretary of State.

The Commission have set out in their Reports to the Secretary of State how thereafter they went about the fulfilment of their statutory obligations in relation to each of the two Islands Councils. I think, however, that it is instructive to look at the documentary productions, where necessary, and not simply to the text of the Reports as Mr Clarke, who appeared for the petitioners, urged me to do.

First, I should set out, however briefly, the statutory duties which the Commission were required to perform. In this connection I an conscious that Lord Penrose has dealt with this matter very fully in the case of City of Aberdeen Council v The Local Government Boundary Commission for Scotland 1998 S.L.T. 613, and I am indebted to him for that exposition. The Commission, when carrying out a review, may make proposals to the Secretary of State for effecting changes which appear to them desirable in the interests of effective and convenient local government, and they may make these changes in any of a number of ways which are enumerated in section 13 of the Act. It is clear from this section that the Commission may decide that no changes should be made. It is also clear that, if they do make proposals for changes, they have discretion in determining what is in the interests of effective and convenient local government. Much of the debate before me turned on what was meant by "effective and convenient local government", and it is the essential thrust of the petitioners' submission that the Commission in conducting their review failed to give proper effect to this expression, but, instead, were dominated by what they refer to as equity in representation or equity between voters. Indeed, as Mr Clarke pointed out, the statutory phrase "in the interests of effective and convenient local government" does not appear at any point in the two Reports. The question, of course, is whether that is significant.

According to Mr Clarke, local government was effective if it worked well in the delivery of services and the performing of functions which were conferred on the authorities by statute. It could not be presumed that these two words, namely "effective" and "convenient", were synonymous. The word "convenient" had to have a separate meaning. He suggested that a convenient local government was a local government that delivered those services and performed those functions without undue trouble and effect on the part of those providing the services and performing the functions, and, indeed, also for the recipients of these services. Mr Drummond Young, who appeared for the Commission, having considered dictionary meanings and derivations, maintained that the phrase meant serviceable and suitable local government. In the result, I do not think the meanings proffered by counsel are materially different when considering how the Commission went about its task of review. The central question is whether, even accepting the phrase as the Commission's counsel submitted that it should be understood, the Commission gave full effect to it throughout their review.

One of the means whereby changes may be effected in terms of section 13 is a change of electoral arrangements for any local government area. In terms of section 13(d) and section 16(1) the changes proposed for these two Islands Councils are "substantive changes". "Electoral arrangements" is defined in section 28(1) as follows:

So, if the Commission wished to make proposals to the Secretary of State for effecting changes by way of electoral arrangements, their primary task is to consider what is desirable in the interests of effective and convenient local government in terms of the overall number of councillors in relation to a local government ward, the number and boundaries of the electoral wards, etc., and the designation of any electoral ward.

Section 28(2) of the Act provides rules to be complied with by the Secretary of State and the Commission, so far as reasonably practicable, in considering the electoral arrangements for local government areas. They are contained in Schedule 6, which is headed "Rules to be Observed in Considering Electoral Arrangements". Paragraph 1(2) of the Schedule provides what is familiarly referred to as "the parity rule" in the following terms:

Paragraph 2 of the Schedule, however, provides a qualification upon the strict rule in paragraph 1(2) which may be departed from in any area where special geographical considerations appear to render a departure desirable. Finally, paragraph 1(3) provides that, subject to the so-called parity rule, regard shall be had in considering electoral arrangements to (a) the desirability of fixing boundaries which are and will remain easily identifiable, and (b) any local ties which would be broken by the fixing of any particular boundary.

The correct application of the statutory provisions in a case where the Commission wish to make proposals for effecting changes, is well understood. The Commission must first decide on the appropriate number of councillors required for effective and convenient local government. Then it is the duty of the Commission to comply so far as is reasonably practicable with the Rules set out in Schedule 6, and secure, as nearly as may be, electoral equality. (See the London Borough of Enfield v The Local Government Boundary Commission for England 1979 3 All E.R. 747, especially per Viscount Dilhorne at page 751.) The so-called parity rule may yield to special geographical considerations. If it does, then it may be that in the interests of effective and convenient local government, the proposed number of councillors and electoral wards will have to be increased. To that extent, I suppose it could be said that the tail may have wagged the dog. Levity aside, the point is that the dog must be identified first, even if his shape may later have to be altered.

Let me now consider first the case of Shetland Islands Council. They responded to the Commission's letter of 29 March 1996 by agreeing with the Commission that their local government area should remain at 26 electoral wards. In their letter of 26 June 1996, however, the Commission, following the visit to Shetland of their Deputy Chairman and Secretary, set out the basis upon which they intended to decide the number of councillors for the Island Authorities. After the introduction, the writer of the letter, the Commission's Secretary, wrote:

The Commission's decision with regard to mainland authorities and the appropriate number of councillors with regard to each category is to be found in paragraphs 17, 18 and 19 of the Shetland Islands Council Report, and also in the Opinion of Lord Penrose (cited above) at pages 615-6. In a section of their Report headed "Background" the Commission explain that following the passage through Parliament of the Local Government (Scotland) Act 1994 it was understood that, using existing district wards led to some councils being significantly over- represented in relation to other areas. Further, councillors within the same local authority areas represented wards with significantly different numbers of electors. "Accordingly", said the Commission, "our review was seen as important to ensure equity in representation across and within all local authorities. Further, the new authorities were now responsible for the provision of the full range of all services and, accordingly, consideration had to be given to determining an appropriate number of councillors for service provision to be effectively managed." The Commission went on to explain in that section of the Report that the review was the first to be conducted by them to determine the appropriate number of councillors required for Councils to operate efficiently and to establish the boundaries of electoral wards. So they decided upon a suitable methodology for determining the number of councillors which, applied across all local authority areas, would be seen to be equitable and consistent; and the division of each local authority area into the appropriate number of electoral wards in accordance with the statutory rules to be found in Schedule 6 to the Act. The decision to apply the methodology to Councils was the subject of judicial review by way of petition at the instance of Aberdeen City Council. That petition was considered by Lord Penrose in the case already cited, and it was dismissed by him at the stage, it should be noted, before the proposed scheme for that local government area was deposited for public consideration and representations.

Shetland Islands Council by letter dated 24 August 1996 declined to answer the Commission's questions posed in their letter of 25 July 1996 and adhered to their decision to retain 26 electoral wards. The Council's decision letter with regard to Islands Councils is dated 28 August 1996. The Secretary wrote inter alia,

Shetland Islands Council replied on 3 October 1996 expressing regret that the Commission had not accepted that 26 electoral wards formed the best representation for the Shetland Islands area. The writer went on:

Shetland Islands Council proposals by way of a draft scheme were delivered to the Commission on 10 December 1996. The Commission in their Report at paragraph 22 record that Shetland Islands Council published its draft scheme 10 days later, seeking representations but that none was received. Thereafter the communications between the Council and the Commission, either in person between officials or in writing, were concerned with competing schemes, each based on a representation of 22 councillors.

Mr Clarke submitted that the Council never departed from the view that for the best representation there should be 26 wards, and that it was in the spirit of co-operation that they had prepared a draft scheme for 22 electoral wards. I do not think that that is right. For whatever reason, Shetland Islands Council accepted the Commission's provisional proposal that the appropriate number of councillors for the Council area in terms of sections 13 and 28 of the Act, was 22. As I see it, therefore, what followed thereafter was a dispute about where the electoral boundaries should lie and how the Rules in Schedule 6 should be applied.

The Commission concluded in paragraphs 31 and 32 of their Report thus:

The primary rule concerning electoral parity referred to at the very end of paragraph 32 is, of course, the Rule set out in paragraph 1(2) of Schedule 6 to the Act. See, too, paragraph 26 of the Report. Nevertheless, if one has regard to the letter from the convenor of Shetland Islands Council to the Secretary of State dated 2 November 1998, I suppose that it can be said that Shetland Islands Council are currently maintaining, as they did at the outset, that the appropriate number of councillors to represent the local government area is 26. So it is necessary to consider whether the Commission misdirected itself in relation to Shetland Islands Council with regard to the terms of section 13 of the Act. Since these considerations are the same in relation to Orkney Islands Council I shall deal with them after I have considered the position of Orkney Island Council.

In Orkney's case the dispute ultimately between the parties turns on whether the appropriate number of councillors is 21 or 22. The difference between the two schemes, so far as numbers are concerned, is whether two or three councillors should represent the northern isles of the Council. The only scheme which the Council proposed demonstrated in the judgment of the Commission an unacceptable diversion from parity (Rule 1(2)). Similar correspondence passed between the Commission and Orkney Islands Council as passed between the Commission and Shetland Islands Council. So I need not consider it in such detail as I did in Shetland's case. I do however note that Orkney Islands Council had previously determined that a total number of 21 councillors would be sufficient for their needs. But by letter dated 14 February 1997 they settled for 22 because to achieve 21 would have distorted existing wards. The Commission's provisional proposals for 21 elected members and electoral wards are contained in the letter of 2 December 1997. The Council's comments are in their letters of 16 December 1997 and 12 January 1998. The representations with regard to the Commission's proposed scheme are set out in paragraph 41 of their Report. The Commission proceed in their Report in paragraphs 42 to 44 to state their conclusions and how they reached them in the light of all the representations which they considered. They said:

I consider that, against that background, the Commission in setting the ratio for the Island Council at 1:750 took account of the special geographical and demographic features of these local government areas in proposing a particular number of councillors for each area. In the cases of Orkney and Shetland they went on to consider in very considerable detail the questions of local ties and special geographical considerations including, of course, communications between the various island communities. It is perfectly correct to say that, having set provisional figures for the number of councillors and electoral wards in the case of these two Councils, they were not persuaded to change their minds. But I am wholly unable to say that they had their minds closed to the possibility that these numbers might be changed. For what it was worth, Mr Drummond Young informed me that in Argyll and Bute and Perth and Kinross Councils the Commission were persuaded in the interests of effective and convenient local government to increase the number of councillors by one to take account of geographical and communication problems, in the first case in relation to Colonsay, Islay and Jura, and in the second case in relation to the high road which passes between Aberfeldy to the south and Tummel Bridge to the north. I say, "for what it is worth", because it does not necessarily follow from these examples that in the case of Orkney and Shetland the Commission remained flexible in their outlook. I confess the difficulty for me throughout my consideration of these two petitions, together with their Answers, has been the failure by the Commission in these reports to set out the primary statutory criterion for their making proposals for changes, and that is, what is in their opinion desirable in the interests of effective and convenient local government. They were clearly advised of this by Lord Penrose in City of Aberdeen Council v Local Government Boundary Commission for Scotland (cited above) at page 622G where Lord Penrose referred to the sole question the Commission were required to ask: what was the number of councillors required for the effective and convenient administration of local government in the local authority areas under review. The fact that they did not, as in my clear opinion they should have done, has provided substantial material for the petitioners to exploit. As I have already said much earlier in this Opinion, the question is whether in fact the Commission had the terms of section 13 in their minds, notwithstanding that they nowhere stated these terms, but actually set out in an Appendix to their Reports the Rules provided in Schedule 6. When I look again, as I have done several times, at the substance of the Reports, supported by the documentary productions, I am ultimately persuaded that the Commission were considering throughout the central question, namely what appeared to them desirable in the interests of effective and convenient local government, in the sense of serviceable and suitable local government. I cannot think that they were doing anything other than that, and I was not persuaded by Mr Clarke's submission that their real concern was with the parity rule. They were concerned, I acknowledge, with electoral equality, but not in my view to the exclusion of the particular features of the local government areas. In Orkney's case, for example, their opinion with regard to the number of councillors to represent the northern isles, namely 2 as opposed to 3 as the Council proposed, was based upon a full consideration and argument with regard to the needs of that area. Nevertheless, as I have already said, I do find it very regrettable that they nowhere set down the terms of section 13 and nowhere said in their Reports that the criterion in that section was constantly present in the forefront of their minds. In the end I rea

In these circumstances I will uphold the first and third pleas-in-law for the respondents and dismiss both petitioners.