London Borough of Hackney & Anor, R (on the application of) v Secretary of State for Housing Communities and Local Government

The Secretary of State may enforce the frequency requirement in the Code of Practice on Local Authority Publicity 2011 without proving that a particular authority has caused identifiable unfair competition to local newspapers. The statutory scheme permits enforcement of the policy adopted by Parliament, subject to consideration of any special circumstances relied upon by the authority.

Judicial review of a ministerial socio-economic policy decision is ordinarily concerned with rationality, not proportionality. A public authority’s duty under the Equality Act 2010 is one of informed and conscientious process; the weight given to equality implications remains for the decision maker. The enforcement power may be exercised without awaiting further reviews or evidence where the decision maker rationally considers the existing information sufficient.

These conjoined judicial review claims were brought by the London Boroughs of Hackney and Waltham Forest against directions made by the Secretary of State under section 4A of the Local Government Act 1986. The directions required their free local newssheets, which had been published approximately fortnightly, to comply with the quarterly frequency requirement in the Code of Practice on Local Authority Publicity 2011.

The Councils challenged the directions on grounds including statutory misdirection, irrationality, proportionality, abuse of power, failure to make sufficient inquiry, breach of the public sector equality duty and unlawful State aid. A Hackney resident additionally relied on Article 10 rights to receive information. The central issue was whether the Secretary of State had to establish, in each borough, actual or likely unfair competition with local newspapers before enforcing the Code.

1. The claims were dismissed. Section 4A of the Local Government Act 1986 was enacted to enable enforcement of the Code. Parliament had already made the policy judgment that local authority newssheets should ordinarily not be published more frequently than quarterly. The Secretary of State therefore did not have to prove material and identifiable prejudice to particular local newspapers, or establish that enforcement was necessary to prevent unfair competition in the relevant borough. He was entitled to treat compliance as the starting point and to consider whether special circumstances justified departure.

2. The correct standard for reviewing the exercise of the ministerial discretion was rationality, not proportionality, save where proportionality arose under EU law or because Convention rights were engaged. The decision concerned socio-economic policy, predictive judgments and value judgments, and therefore attracted a wide margin of appreciation. The Secretary of State rationally concluded that frequent free distribution was likely to hinder the market for independent local newspapers and that advertising revenue might become available to them if publication were reduced.

3. There was no breach of the duty to make reasonable inquiry. Whether further information was relevant or necessary was for the decision maker unless his judgment was irrational. He was not obliged to await the Cairncross review or to obtain further empirical evidence. Nor was enforcement an abuse of power: the proposed review of the Code was not linked to a promise that the Code would remain unenforced pending review, and Parliament had subsequently conferred express enforcement powers.

4. The public sector equality duty under section 149 of the Equality Act 2010 required a substantial, rigorous and open-minded process, not a particular outcome. The Secretary of State had sufficiently assessed the possible effects on elderly and disabled residents and considered alternative means of communication. The weight given to those effects was for him.

5. Any interference with residents’ Article 10 rights was limited and justified. The directions did not deprive residents of access to the information, which remained available through other channels. The State aid challenge also failed because there was no evidence that the alleged advantage affected trade between Member States.