Bedfordshire County Council, R (on the application of) v The Secretary of State for Communities and Local Government

Preliminary indications made during an evolving statutory decision-making process are not necessarily amenable to judicial review as if they were final decisions. Where legislation permits pre-enactment proposals and consultation to inform a later post-enactment decision, the process may remain iterative and may require further inquiry, consultation and assessment.

A published procedure does not create a legitimate expectation that the Secretary of State must decide the matter at a particular stage where the documents do not impose that restriction. In assessing competing local government proposals, the Secretary of State may rely on professional financial advice, give it appropriate weight and make evaluative judgments about reasonable likelihood, affordability and long-term benefit. The court should be cautious about intervening in such provisional assessments.

The County Council sought permission to apply for judicial review of the Secretary of State’s provisional, or “minded to decide”, indications concerning competing proposals for restructuring local government in Bedfordshire.

The County Council proposed a single county-wide unitary authority. Bedford Borough Council proposed a unitary authority for Bedford, complemented by a unitary authority for the remainder of the county. The Secretary of State provisionally preferred the two-unitary arrangement, but continued to seek further information after the enactment of the Local Government and Public Involvement in Health Act 2007.

The central issues were whether the provisional indications breached a legitimate expectation, were irrational, or were unlawfully reached after further work was invited from the Borough and District Councils.

The application for permission to apply for judicial review was refused.

1. Section 21 of the Local Government and Public Involvement in Health Act 2007 gave anticipatory proposals and pre-enactment consultation effect for the purpose of enabling post-enactment assessment. It did not preserve the Secretary of State’s provisional indications of 25 July 2007 as a decision independently challengeable by judicial review. The relevant post-enactment decision, ultimately embodied in the Bedfordshire (Structural Changes) Order 2008, was not under challenge.

2. The proposal, consultation and assessment process was not a series of self-contained stages requiring a final decision at the end of each stage. It could properly be iterative. Further inquiry, consultation and reconsideration were permissible where the Secretary of State required more information before assessing the reasonable likelihood of achieving the relevant outcomes, particularly where the assessment involved evaluative concepts such as reasonable likelihood.

3. The published invitation and consultation documents did not promise that a proposal satisfying the criteria at one stage could not be developed, or that an earlier proposal rejected for lack of detail could never be reconsidered. The County Council therefore had no legitimate expectation that the Borough and District proposals would be excluded from further consideration. The Secretary of State continued to apply the same criteria openly and gave the County Council an opportunity to participate.

4. The challenge to the affordability assessment had no real prospect of success. The independent financial consultants reported that both principal proposals involved a medium risk of failing the affordability criterion but that both could be workable. The Secretary of State was entitled to give weight to that advice and to the further information before her, and to conclude that the Borough proposal met the criterion.

5. It was rational to invite the District Councils to revive and develop their complementary proposal. The earlier rejection had principally resulted from insufficient detail, including on affordability, rather than a conclusion that such a unitary structure was inherently incapable of satisfying the criteria. The provisional preference for the two-unitary solution was not a final decision affecting only part of the county without regard to the remainder.

6. The court should be wary of intruding into provisional value judgments concerning local government structures and the use of public resources, especially where further information and professional advice remained relevant.

First-instance judicial review proceedings. No appellate history was stated in the judgment.