Derbyshire County Council, R (on the application of) v Barnsley, Doncaster, Rotherham And Sheffield Combined Authority

For statutory consultation on a proposed combined-authority scheme, “public consultation” is a broad requirement. The consulting authority must make a rational judgment about the people and areas likely to be affected; the statute does not impose an arbitrary geographic limit. Major proposals must be identified and explained sufficiently to permit an intelligent response. A general question cannot substitute for a direct question on a fundamental and controversial proposal. The Secretary of State remains responsible for deciding whether further consultation is necessary and may address defects without necessarily starting again.

The claimant challenged a consultation conducted by the defendant Combined Authority concerning a proposed scheme under the Local Democracy, Economic Development and Construction Act 2009, as amended by the Cities and Local Government Devolution Act 2016. The scheme would extend the authority to include Chesterfield Borough Council and Bassetlaw District Council, confer or transfer functions, and create a Sheffield City Region Mayoral Combined Authority.

The challenge concerned the geographical scope and content of the consultation, including whether it covered the proposal that Chesterfield should become a constituent council. The Secretary of State had not yet decided whether to make the relevant orders or whether further consultation was required.

Permission was granted. The claim succeeded in relation to the omission of a direct question about Chesterfield Borough Council becoming a constituent council of the Combined Authority, although the precise form of relief was reserved.

1. Public consultation. Section 113 required consultation with the general public, including those judged likely to be affected to an extent making their views potentially significant. The expression “public consultation” imposed no arbitrary limit to the proposed Combined Authority’s area. The Combined Authority could rationally target the principal affected areas, provided it made a lawful judgment about the geographical scope and considered responses from outside the target area. On the evidence, the consultation was public for the purposes of section 113.
2. Connection with the scheme. A consultation could not satisfy section 113 if major proposals were omitted from the principal vehicle for public responses. Chesterfield’s proposed membership was a fundamental and controversial proposal. The questionnaire referred to it but did not ask respondents whether they supported it. Responses expressing views indirectly could not reliably serve as a proxy for an explicit question.
3. Other matters. The omissions concerning voting rights, the functions of the Combined Authority and Mayor, funding, and Derbyshire County Council’s consequential membership did not independently make the consultation unlawful. The proposed North Midlands scheme was not an alternative which the Combined Authority was required to mention under R (Moseley) v Haringey LBC [2014] UKSC 56.
4. The Secretary of State could decide whether the existing material was sufficient, require further consultation, or ask for part of the consultation to be repeated. The court was not then minded to quash the consultation, and invited submissions on the appropriate order.