Court of Appeal

Published March 12, 2008

Regina (Shrewsbury and Atcham Borough Council and Another) v Secretary of State for Communities and Local Government

Before Lord Justice Waller, Lord Justice Carnwath and Lord Justice Richards

Judgment March 4, 2008

Proposals to replace two-tier local government in some parts of the country with unitary authorities, made before the necessary statutory powers were in place, were lawful as long as genuine reconsideration had been given to them after the commencement of the relevant Act.

The Court of Appeal so stated when dismissing the appeals of Shrewsbury and Atcham Borough Council and Congleton Borough Council against the dismissal by Mr Justice Underhill on October 10, 2007 ([2007] EWHC 2279(Admin)) of their application for judicial review of the process adopted by the Secretary of State for Communities and Local Government, and decisions made in the course of that process, putting forward proposals to replace two-tier local government in Shropshire and Cheshire.

After that judgment, the Local Government Public Involvement in Health Act 2007 was passed and brought into effect on November 1, 2007. The secretary of state made decisions under that Act to proceed with the proposals and laid the necessary orders before Parliament.

Mr Andrew Arden, QC, Mr Jonathan Manning and Ms Laura West for the councils; Mr James Eadie and Ms Catherine Callaghan for the secretary of state; Mr Richard McManus, QC and Mr Andrew Sharland for Shropshire County Council, as interested party.

LORD JUSTICE CARNWATH, having noted that steps taken before the 2007 Act by the secretary of state exercising a common-law power were inconsistent with the statutory regime in force, said that section 21 of the 2007 Act was designed to allow steps already taken in anticipation of the Act to be treated as though taken under it.

Following commencement of the Act, however, there had to be genuine reconsideration of the merits of the proposals.

His Lordship had concerns about the extent to which a wholly nonstatutory procedure had been used to prepare the way for decisions, in an area which was accepted as the province of legislature, and the potential risks of such a course. His Lordship understood that one purpose was to limit the period of uncertainty accompanying structural change.

But it seemed a constitutional principle of some importance that local authorities should be able to rely on the safeguards of a statutory framework for the processes leading to decisions of such importance.

However, it was impossible to avoid the conclusion that Parliament had, if only retrospectively, given its stamp of approval to the procedure in this case and there was no evidence that the authorities had been prejudiced in representing their opposition.

On the evidence, there had been reconsideration and thus the proposals were lawful.

Lord Justice Waller and Lord Justice Richards delivered concurring judgments.

Solicitors: Mr Christopher Gordon, Shrewsbury and Mrs Margaret Ingram, Sandbach, Treasury Solicitor; Ms Claire Porter, Shrewsbury.

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