Devon County Council & Anor v Secretary of State for Communities and Local Government

A statutory consultation is unlawful where the decision-maker changes the decisive role of expressly stated criteria without giving consultees a fair opportunity to address the new approach. The relevant question is whether the process was so unfair as to be unlawful. It is not enough that the new factors were legally relevant or that the substantive decision was rational. Where the decision-maker has repeatedly represented that a proposal must satisfy every criterion before it can proceed, consultees are entitled to respond on that basis. A late decision to allow failure of one or more criteria to be outweighed by newly relied-on considerations requires, at minimum, a clear alert and an opportunity for representations.

The Secretary of State decided that Exeter and Norwich should become unitary authorities under the Local Government and Public Involvement in Health Act 2007. The proposals had been assessed through extended consultation against five published criteria, including affordability and value for money. The Government repeatedly stated that a proposal failing any criterion would not proceed.

After the final consultation, the Secretary of State accepted that the proposals failed one or more criteria but treated the economic downturn and the Total Place approach to public services as compelling reasons to implement them. Devon and Norfolk County Councils sought judicial review, alleging unfair consultation, breach of legitimate expectation, predetermination and irrationality. The central issue was whether the final change in the role of the criteria required further consultation.

1. The Orders were quashed. The proposals themselves remained unchanged, and the factors relied on by the Secretary of State were legally relevant. The substantive conclusions were not irrational. Those matters did not, however, determine whether the consultation was fair.
2. The Secretary of State had repeatedly presented the five criteria as a gateway. A proposal had to satisfy every criterion before it could proceed, although satisfaction did not guarantee implementation where competing proposals had greater priority. This gave the criteria a decisive negative role.
3. Fair consultation required sufficient information not only about the proposal but also about factors likely to be substantially important to the decision and the basis on which the decision was likely to be made. That approach was supported by R (Capenhurst) v Leicester City Council (2004) 7 CCLR 557.
4. The final decisions adopted a fundamentally different approach. Proposals which failed the criteria could now proceed if there were compelling reasons, including economic growth and Total Place. Consultees had not been alerted to that possible change, to the altered significance of the criteria, or to the specific matters said to justify it. The fact that the new factors were relevant to some criteria did not alert consultees that failure of affordability, or of affordability and value for money, might be overcome.
5. The consultation was therefore so unfair as to be unlawful. The court accepted that consultation need not respond to every change or nuance, and that a flawed process is not invariably unlawful. The proper question remained whether the process was unfair in the circumstances. The legitimate-expectation argument added nothing to the consultation duty. There was no predetermination, and the irrationality and lack-of-evidence grounds failed.
6. The Orders were quashed, but could be put forward again after a short period of consultation.

This was a first-instance judicial review. The judgment records that the Secretary of State’s decisions were followed by Parliamentary approval and the making of the Orders on 24 March 2010, but no appellate history is stated.