The Electoral Commission v Forest Heath District Council & Anor

In a statutory process for reorganising local government, the pre-consultation formulation stage is distinct from the statutory public consultation stage under the Local Government and Public Involvement in Health Act 2007. A body formulating draft alternatives must gather information and engage in proportionate dialogue, but need not consult on every proposal advanced by others, disclose provisional reservations, or explain in advance why a proposal will not be published. It may narrow the range of options to those reasonably likely to meet the prescribed criteria. At the consultation stage it must explain clearly the proposals positively under consideration and give enough reasons for an intelligent response. It need not explain why rejected alternatives were omitted, provided affected parties can still promote them. Fairness is assessed in the statutory context and does not convert formulation into negotiation.

The Electoral Commission and the Boundary Committee for England appealed against Foskett J’s decision in the Administrative Court, reported at [2009] EWHC 1682 (Admin). He had quashed the Boundary Committee’s Further Draft Proposals for unitary local government in Suffolk.

The respondents supported an East/West/Ipswich structure. They argued that the Committee had failed to engage in adequate pre-consultation dialogue about its concerns and that the later consultation was unfair because the Committee did not explain why their preferred concept had not been published. The central issues were the meaning of dialogue under the statutory guidance and the scope of the duty of fairness across the formulation and consultation stages.

Appeal allowed. The Court of Appeal set aside Foskett J’s order quashing the Further Draft Proposals.

1. The statutory scheme under Part 1 of the Local Government and Public Involvement in Health Act 2007 creates a formulation stage followed by statutory public consultation. The Boundary Committee must gather information and have proportionate dialogue with interested local authorities so that it can formulate such alternative proposal or proposals as it considers appropriate. Dialogue is a two-way exchange for that purpose. It is not a requirement to consult on every concept advanced by others or to disclose the Committee’s provisional reasoning before publication.
2. The Committee may narrow the range of options and is not obliged to publish every proposal which might meet the Secretary of State’s criteria. It must not publish a proposal which it considers unlikely to meet one or more criteria. The statutory consultation requirements concern proposals which the Committee has decided to publish, not proposals rejected during formulation. This accords with the approach in R (Breckland D.C.) v The Boundary Committee [2009] EWCA Civ 239.
3. Fairness is context-sensitive. It depends on the statutory provisions and the legal and administrative system in which the body operates. Authorities exercising statutory functions must act in good faith and listen to both sides, but the Boundary Committee was performing an advisory rather than determinative function. The respondents knew the criteria, had submitted detailed material, had answered the Committee’s questions and had ample opportunities to promote their preferred structure. Fairness did not require advance disclosure of the Committee’s internal reservations.
4. At the consultation stage, the Committee had to state clearly what proposals were positively under consideration and give sufficient reasons to permit an intelligent response, applying the principle in R v North and East Devon Health Authority ex parte Coughlan [2001] QB 213. It did not have to explain why every rejected alternative was absent. R (Medway Council and others) v Secretary of State for Transport [2002] EWHC 2516 Admin was distinguishable because that case involved no equivalent formulation stage and an effective loss of the only realistic opportunity to promote the excluded option.

• Court of Appeal (Civil Division) — [2009] EWCA Civ 1296. Appeal allowed and the order of Foskett J set aside.
• Administrative Court, Queen’s Bench Division — Foskett J, [2009] EWHC 1682 (Admin). The Further Draft Proposals were quashed and permission to appeal was granted.