Shrewsbury & Atcham Borough Council v Secretary of State for Communities and Local Government

A Minister may use common law powers to undertake governmental preparations for proposed legislation, even where the existing legal field is regulated by statute. The limitation is reached when the Minister purports to exercise governmental authority inconsistently with the existing statutory regime. A policy invitation and assessment process need not require every criterion to be conclusively satisfied at its earliest stage where the governing document permits a flexible, prospective assessment. A criterion requiring broad cross-section support does not require majority support, and its assessment is ordinarily reviewable only on Wednesbury grounds. Consultation is not unlawful merely because the Government does not provide links to every opposing body’s website.

Two local authorities sought judicial review of decisions by the Secretary of State concerning proposals to replace two-tier local government with unitary authorities. Shrewsbury challenged the decision to proceed with Shropshire County Council’s proposal. Congleton challenged decisions concerning competing Cheshire and Chester proposals.

The challenges alleged lack of vires, failure properly to apply the requirement for support from a broad cross-section of partners, stakeholders and service users or citizens, and unfair consultation because the Department’s website linked to proposing authorities but not opponents. The applications were heard together and the court considered both stage 1 decisions and later provisional decisions.

1. Outcome. Both applications for judicial review were dismissed.
2. Vires. The Secretary of State possessed common law powers, arising from the Crown’s legal personality, to take governmental steps in preparation for a proposed statutory regime. That power was subject to ordinary public law review, could not authorise interference with rights and liberties without legal authority, and could not be used in a field already regulated by statute where Parliament intended the statutory scheme to be exclusive. The existing local-government restructuring regime did not prevent preparatory work directed towards replacing it. The decisive boundary was crossed only when the Minister purported to exercise actual governmental authority inconsistently with the existing regime. The invitations, assessments and provisional decisions did not do so.
3. Support criterion. The requirement for support from a broad cross-section of relevant partners, stakeholders and service users or citizens did not require majority support. Substantial support was sufficient. The Secretary of State was entitled to assess the likelihood that the criterion would be met at a later stage, rather than treating stage 1 as requiring a conclusive assessment fixed at that date. The working document was properly read as allowing procedural flexibility, particularly because public opinion and available information might change.
4. The assessment of support involved an exercise of judgment reviewable on Wednesbury grounds. The evidence, including polling qualifications, incomplete geographical coverage and indications that opinion might change with fuller information, was sufficient to support the Secretary of State’s conclusions.
5. Consultation. The Department acted reasonably in linking to the proposals under consultation without linking to all opposing authorities and other bodies. Even if the omission could be criticised, it was not a sufficiently substantial failing to invalidate the consultation or resulting decisions.

First-instance judicial review applications were heard together in the Administrative Court. The court dismissed both applications.