Christchurch Borough Council, R (On the Application Of) v Secretary of State for Housing Communities and Local Government

A delegated legislative power need not expressly authorise retrospective regulations if the enabling provision clearly confers that power. Whether retrospective operation is lawful depends on fairness, assessed as a matter of degree and in its legislative context. A Henry VIII power, Parliamentary approval and reporting requirements may materially reduce any unfairness. Regulations which alter the procedural route for local government reorganisation may be procedural rather than retrospective interference with substantive rights. Judicial review must also be brought promptly, and relief may be refused where it is highly likely that the outcome would not have been substantially different.

Christchurch Borough Council challenged the Secretary of State’s use of section 15 of the Cities and Local Government Devolution Act 2016 to make the Dorset (Structural Changes) (Modification of the Local Government and Public Involvement in Health Act 2007) Regulations 2018. The regulations modified the statutory procedure and treated an existing Dorset reorganisation proposal as one made under section 2 of the Local Government and Public Involvement in Health Act 2007. The proposal would abolish Christchurch Borough Council as part of a new unitary structure.

The Council argued that regulation 4 was retrospectively made and ultra vires, and that the claim had been brought promptly. The central issues were whether section 15 authorised the provision, whether the presumption against retrospectivity applied, and whether delay or the statutory no-difference principle independently defeated relief.

1. Power and retrospectivity. Section 15(3) of the Cities and Local Government Devolution Act 2016 authorised regulations applying the Local Government and Public Involvement in Health Act 2007 to particular cases, including treating an existing compliant proposal as made under section 2. An express power to legislate retrospectively was unnecessary because section 15(3) was sufficiently clear.
2. The presumption against retrospectivity was based on fairness, not on a binary classification. Relevant safeguards included consent by a relevant local authority, affirmative approval by both Houses of Parliament, and the statutory report explaining the regulations and the reasons for making them. The extensive consultation and notice given to Christchurch meant that there was little or no unfairness.
3. The regulations were procedural in character. They altered the procedural requirements preceding implementation of a reorganisation proposal and did not retrospectively deprive the Council of a valuable substantive right. The Council had no statutory right not to be abolished.
4. Promptness. The claim was not brought promptly under CPR 54.5. The Council knew in 2017 that the section 15 procedure would be used and had the draft regulations, including regulation 4, by January 2018. The court should scrutinise carefully whether the making of regulations creates a fresh period where the underlying publicly stated position could have been challenged earlier.
5. Relief. Section 31(2A)(a) of the Senior Courts Act 1981 applied because, even if regulation 4 were ultra vires, the other regulations and order could remain effective and the proposal could be resubmitted. Relief was also refused discretionarily because it would cause delay and harm good administration without affecting the likely outcome. The claim was dismissed.

First-instance judicial review proceedings. The claim was dismissed by the High Court (Administrative Court).