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

Preparatory governmental steps which have no independent legal effect are not automatically nullities merely because they conflict with an existing statutory scheme. Their legal significance and the appropriate remedy depend on their practical effects and on the validity of the later substantive decision.

Parliament may retrospectively authorise pre-commencement invitations, guidance, proposals and consultation. A later statutory decision remains lawful where the decision-maker genuinely reconsiders each proposal on its merits and does not treat an earlier provisional decision as binding. Outside a specific statutory framework, a procedural legitimate expectation may be varied or withdrawn where adequate notice is given and no procedural prejudice results.

The Secretary of State invited proposals to replace two-tier local government with unitary authorities while legislation authorising implementation was still before Parliament. The appellants, borough councils liable to abolition under the Shropshire and Cheshire proposals, challenged the invitations, the pre-enactment decisions and the consultation process. Underhill J dismissed their applications for judicial review.

After that judgment, the Local Government and Public Involvement in Health Act 2007 came into force. The Secretary of State reconsidered the proposals, decided to implement them and laid the necessary orders before Parliament. The appellants amended their claims to challenge those later steps.

The central issues were whether the pre-enactment process exceeded the Secretary of State's powers or conflicted with the existing statutory scheme, whether procedural defects invalidated the later decisions, and whether section 21 of the 2007 Act retrospectively authorised the earlier process.

1. Appeals dismissed. The only decisions with direct legal significance were the December 2007 decisions under the Local Government and Public Involvement in Health Act 2007 and the ensuing steps towards restructuring orders. The earlier invitations and provisional decisions were preparatory steps without independent legal effect. Once statutory decisions had been made, a challenge confined to the pre-Act steps would serve no useful purpose.

2. Section 21 was intended to treat pre-commencement invitations, guidance, proposals and consultation as effective under the 2007 Act. Parliament knew that the Secretary of State had proceeded in anticipation of legislation. The provision therefore retrospectively supplied a legally effective basis for the later decisions and orders.

3. The evidence established that the Secretary of State genuinely reconsidered the merits of the proposals after commencement of the Act. She considered further representations and assessed all 26 proposals against criteria which then operated as guidance under section 3(5). She did not fetter her discretion by treating the July decisions as conclusive. The Act required consideration of each proposal on its own merits; it did not require approval to depend on comparison with every other actual or potential proposal.

4. Carnwath LJ, with Waller LJ agreeing on this point, considered that the pre-Act process had entered a field covered by the Local Government Act 1992. It went beyond general policy formation and was inconsistent with the existing statutory machinery. That conclusion did not make every preparatory step a nullity. The nullity doctrine principally concerns formal acts having legal consequences. The significance of procedural unlawfulness depends on its nature, practical effects and the substantive relief sought.

5. Richards LJ disagreed on that issue. He considered the Secretary of State's preparatory work lawful under the Crown's common-law capacities and consistent with the 1992 Act. All three members of the court nevertheless accepted that R v Secretary of State for Health, ex p C [2000] 1 FLR 627 bound the court concerning the existence of non-statutory ministerial powers.

6. The change from requiring public support to assessing a reasonable likelihood of satisfying that criterion caused no established procedural prejudice. Outside a specific statutory framework, a procedural legitimate expectation may be altered with adequate notice and without procedural prejudice. Section 3(5) made the criteria guidance to which proposing authorities had to have regard, rather than binding and immutable conditions.

7. The unincorporated European Charter of Local Self-Government created no substantive domestic rights or restrictions. It could, in principle, assist statutory construction or common-law development. The website arrangements caused no demonstrated prejudice or sufficiently substantial unfairness to invalidate the consultation.

1. Court of Appeal (Civil Division): The appeals were dismissed by [2008] EWCA Civ 148. The post-commencement decisions and steps towards restructuring orders remained effective.
2. High Court, Queen's Bench Division (Administrative Court): Underhill J dismissed the borough councils' applications for judicial review on 10 October 2007. No citation is stated in the judgment.