What could happen if Local Government Reorganisation is challenged?

Laura Hughes, expert public sector lawyer at our strategic partners, Browne Jacobson, answers some burning questions around the latest LGR decisions: is a judicial review of the government’s decision making likely? What would that look like? And how would it affect the progress of LGR if it happened? 

On 25th March, the government made announcements about the geographies for local government reorganisation in the five priority programme areas. Contrary to the government’s initial indications as to scale for proposed new unitaries, the decisions made in respect of Essex; Hampshire; Norfolk and Suffolk backed a higher number of smaller unitaries (a decision on Sussex is pending). None of the proposals made by county councils in the affected areas were selected by the government.

Even before the decision rumours were swirling about councils who were ‘poised to launch’ a judicial review if the decisions did not go their way. Immediately following the decisions the county councils network issued a statement which was highly critical of the decision making and indicated that their members would “rightly raise serious questions over the process that has been taken, the basis of today’s decisions and the motivation that lay behind them”.

Is a judicial review likely?

Judicial reviews can be brought against any decision of a public body. So, the decisions of the Secretary of State on LGR are susceptible to judicial review. Anyone bringing a claim needs to have ‘standing’, which means a sufficient interest in the claim. Any of the affected ccouncils would have standing; but equally residents within the affected areas are also likely to have standing.  So a challenge being brought is a distinct possibility, particularly considering the political implications of the decisions which have been made.

Would a judicial review succeed?

Crucially, a judicial review is not able to challenge the merits of a decision except where the decision is so irrational that no rational decision maker would have reached it. That is clearly not the case in relation to this set of decisions. Otherwise, the only available grounds for a judicial review are that the decision was unlawful or that it was procedurally flawed.

The decisions of the Secretary of State appear to have been taken lawfully within the scope of the decision making specified in the Local Government and Public Involvement in Health Act 2007. Accordingly, a challenge on the basis of illegality seems unlikely to be successful.

That leaves the option of a procedural challenge. The parts of the decision making process which are public appear to be procedurally sound:

• Proper decisions have been given within the letters sent to council leaders.
• Whilst the county councils network is pointing to a shift in the ‘government guidance’, the statement about the size of new unitaries was never framed as formal guidance by government. Furthermore, when the government considered draft proposals informally, their follow-up communication made it clear that the 500,000 population statement was ‘a guiding principle, not a target’. There is nothing within the legislation which requires certain factors to be taken into account in decision making, and so as long as the government did not set a legitimate expectation (which the various statements here would suggest they did not), then the issue of size is unlikely to be sufficient to ground a claim.
• A consultation was carried out, and it would appear that the outcome of the consultation was taken into account.

It is possible that there is something in some of the individual engagements between the government and the councils which is not public and which would allow a claim to be made, but there appears to be nothing in the public domain which can be used as the basis for a claim.

How would a claim impact the progress of LGR?

Even if a claim is ultimately unsuccessful, the process of judicial review means that a claim can proceed to a hearing if the court can be persuaded that there is an arguable case. The bar for a case to be arguable is relatively low, and in circumstances where there is a high profile and high levels of political involvement, the court often does give permission. If a case proceeds to a full hearing, it inevitably takes time to be heard in court, even if it is expedited. The effect of a judicial review, if it is successful, is so significant (undoing the decisions which have been taken) that people do not want to take action to implement the decision under challenge whilst a claim is in process. When applied to a timetable which is already very tight, any ‘freezing’ impact whilst a claim is in train would seriously threaten delivery on the same timescales.

Conclusion

Based on publicly available information, it seems unlikely that a judicial review of the Secretary of State’s decision-making on LGR would be successful. However, this would not stop a claim being brought, and potentially even gaining permission. Where a claim is in train, it may well have an impact on the willingness of areas to implement the decision under challenge, which might well cause problems for the current timetable.

Read here for more information about Judicial Reviews and where they’ve been used previously by councils.

About the writer

Laura is an experienced public sector lawyer at Browne Jacobson, advising on the full range of public law matters including decision making, consultation, statutory interpretation, statutory & guidance drafting, judicial review & civil enforcement.