Article in Criminal Law & Justice
CL&J (31 Jan 2009) 72-75
||Doc. No. 2009.005
Introductory Note by Francis
Bennion As published, the following article
had material intended for footnotes printed as part of the
text. This was in accordance
with the new house style. In what follows I have retained the
material as footnotes. For ease of reference I have also numbered
the paragraphs. Also relevant to the subject-matter of the article
is document no. 2009.003 and 2009.009.
Since the publication of the article,
the date of 13 February 2009 referred to in paragraph 33 of the
article has been postponed by the Secretary of State for Communities
and Local Government to 15 July 2009. (This is the date by which
the definitive proposal for Devon by the Boundary Committee has
to be submitted by them to the Secretary of State.)
“Never On The Cards”:
Fighting Single-Tier Local Government
Francis Bennion discusses a forthcoming appeal against a threat
to the existence of district councils
1. The 1969 Redcliffe-Maud Report recommended
replacing the existing two-tier local government structure in
Wales by unitary
authorities. The dissenting report by Derek Senior preferred
retention of the two-tier structure, with alterations. The Local
Government Act 1971 followed Senior’s path with the addition
of further metropolitan counties. Since then the two-tier system
has been eaten into. In 1996 unitary authorities were created
in four counties and in 1997, before the change to a New Labour
government, they were created in a further ten counties.
2. Under New Labour the trend towards a single-tier system has
continued, so it has the support of the two main political parties.
In October 2006 the local government White Paper Strong and
Prosperous Communities outlined
the present government’s
intention to invite local authorities in shire areas to make
to replace two-tier structures of district and county councils
with single-tier authorities. The White Paper expressed concern
that two-tier local government creates risks of confusion, duplication
and inefficiency, and argued that moving to a single tier was
the best way of overcoming these.
3. Critics of this approach are found across the political spectrum.
G Mulgan and F Bury, who call the change “centralisation”,
One of the main rationales for centralisation was the claim that
there are economies of scale in service delivery. Surprisingly,
however, there is no evidence for economies of scale in the main
services that have been centralised, and the only detailed analyses
that have been done show very few, if any, economies of scale
above the very smallest district councils.”
4. At the same time as publishing the White Paper, the responsible
Minister, the Secretary of State for Communities and Local Government,
issued an invitation to local authorities to submit proposals
for unitary government. This set out a three-stage process for
the assessment of proposals. It required a proposal to be reasonably
likely to deliver outcomes conforming to five criteria:
(1) The change to single-tier structures should be affordable.
The change must be supported by “partners and stakeholders”.
(3) The single-tier structures must be capable of providing strategic
They must deliver “opportunities for neighbourhood
(5) They must deliver value for money.
5. Local authorities were required to submit their proposals
to the Secretary of State by 25 January 2007. 26 did so. This
article is mainly concerned with two cases in which litigation,
still continuing, has ensued. This is by way of judicial review,
instituted respectively by the East Devon District Council (“East
Devon”) and various councils in Norfolk including Breckland
District Council (“Breckland”). I shall concentrate
on the East Devon case because it offers more interesting points
of law and also because I know the area, being a resident and
council tax payer there.
6. East Devon and Breckland are appealing against similar High
Court boundary decisions on judicial review. Both cases are expected
to be fast-tracked for hearing by the Court of Appeal in February.
As a resident and council tax payer I oppose the bringing
the East Devon appeal on grounds which can be gathered from this
article and are also set out in a different form on my website.
The 2007 Act
7. The legislation passed to implement the New Labour government’s
policy of moving to more one-tier local government is Part 1,
Chapter 1, of the Local Government and Public Involvement in
Health Act 2007 (“the 2007 Act”). Chapter 1 is headed:
STRUCTURAL AND BOUNDARY CHANGE
Change from two tiers to single tier of local government
8. Part 1 of the 2007 Act came into force on 1 November 2007.
The official explanatory notes say:
“Part 1 of the Act provides for . . . a means by which
an area where there are two tiers of local government can be
so that there is a single tier . . . A two-tier area is an area
where some local authority functions are undertaken by a county
council and some by a district council. A single-tier area is
an area in which all local authority functions are undertaken
by a single (unitary) authority.”
9. Section 2 of the 2007 Act, headed “Invitations and directions
for proposals for single tier of local government”, authorises
the Secretary of State to invite or direct a county council or
district council to submit such a proposal. A direction may not
be given after 25 January 2008; and may be given on or before
that date only where the Secretary of State believes that giving
the direction would be in the interests of effective and convenient
10. The invitations sent out earlier by the Secretary of State
are deemed to have been issued under s. 2 of the 2007 Act. In
response to an invitation to Exeter City Council, that council
made a proposal in early 2007 for a new unitary authority based
on its existing boundaries. What happened next is told in the
judgment of Cranston J, in East Devon District Council v
Electoral Commission (The Boundary Committee for England).
I shall refer to this as “the Devon Boundaries Case”.
I shall refer to the judgment of Cranston J as “the Devon
“In a Parliamentary statement in July  the Minister
for Local Government said that there was a concern about the
of the Exeter proposal and he was asking the council to undertake
further work and to submit additional information on the financial
viability of its proposal. In December 2007 the Secretary of
State stated that she was at present minded not to implement
the Exeter proposal, because she was not satisfied that it met
the affordability criterion. However, she had decided to ask
the Boundary Committee for advice on it. As would be expected
preparatory discussions took place between civil servants and
officers of the Boundary Committee. In the middle of December
2007 the Boundary Committee wrote to the Minister for Local Government
expressing gratitude for the assurance that if the Committee
were to undertake the task ‘there would be no question
of us being drawn into expressing views on the merits of two-tier
versus unitary structures. That in our view is a policy matter
for government, not the Committee’.”
11. The statement that the Secretary of State had decided
to ask the Boundary Committee (“the Committee”)
for advice relates to s. 4 of the 2007 Act. This applies where
Secretary of State receives a proposal in response to an invitation
or direction under s. 2. The Secretary of State may then request
the Committee to advise on any matter that relates to the proposal.
Among other alternatives, the Committee may then under s. 5(5)
make an alternative proposal being:
“(a) a proposal that there should be a single tier of local
government for an area that—
(i) is, or includes, the whole or part of the county concerned;
(ii) is specified in the alternative proposal; or
(b) a proposal consisting of two or more proposals that are within
paragraph (a) (and are not alternatives to one another)”.
12. Section 6 of the 2007 Act goes on to lay down the procedure
to be followed by the Committee in formulating its advice, including
consultation requirements. It requires the Committee to publish
a draft of any alternative proposal it intends to make to the
Secretary of State.
Boundary Committee’s Draft Proposals
13. In the Devon Boundaries Case the Secretary of State applied
the above provisions of the 2007 Act to the Exeter proposal.
On 6 February 2008 she asked the Committee
(a) whether there could be an alternative proposal for a single
tier of local government, and if so on what basis, for Exeter
and the whole or part of the surrounding Devon country area … which
would in aggregate … have the capacity if it were to be
implemented, to deliver the outcome specified by the five criteria …;
(b) if there could be such an alternative proposal for a single
tier of local government as referred to in sub-paragraph (a)
above, would the Boundary Committee make that alternative proposal
to the Secretary of State (for the avoidance of doubt the reference
to the making of any such proposal is a reference to the making
of a proposal in accordance with the procedures set out in section
6(4) and (5) of the 2007 Act).
14. After deliberation and consultation, the Committee published
a draft of its alternative proposal on 7 July 2008. This proposed
a single unitary council for Devon, excluding Plymouth and Torbay
(which are existing unitary local authorities). It paralleled
a concept already promoted by Devon County Council in its document,
Flying the Flag for Devon. The Committee said in the draft:
“We have not finalised our proposal for a unitary pattern
of local government in Devon. In the light of representations received,
we will review our draft proposal and consider whether it should
15. The Committee indicated that it might have liked also to
publish another possible alternative, but had been advised that
it could not legally do so. In the words of the Devon judgment
“Although the Committee made clear that the 2007 Act in its
view required it to set out a single draft proposal, and that it
no power to seek views on a range of potential options, nonetheless
‘we have identified a further pattern that, in our judgment,
might also meet the Secretary of State’s criteria against
which our draft proposal can be assessed. Interested parties may
to have this further pattern in mind when commenting on our draft
proposal’ (paragraph 2.22).
That ‘further pattern’, which the Boundary Committee
thought had merit, involved two unitary authorities – an
Exeter and Exmouth authority comprising those two urban areas
and their surrounding parishes, and a Devon authority comprising
the remainder of the county. (The boundaries of Plymouth and
Torbay would not be changed).”
16. Cranston J said this view “is grounded in the statute”,
setting out the provisions of s. 5 of the 2007 Act described
above. He then said:
“The use of the singular ‘alternative proposal’,
is repeated in other consequential provisions, for example, ss.
5(7) and 6(4). Although s. 6(c) of the Interpretation Act 1978
provides that words in the singular include words in the plural,
that only applies absent a contrary intention: see Bennion, Statutory
Interpretation, 5th ed, 579-580.”
17. Cranston J went on to point out that here the Committee
discerned a contrary intention in s. 5(5)(b) of the 2007 Act
(set out above),
which contemplates plural proposals. An express definition of
an alternative proposal to mean two or more proposals in a particular
situation was said to argue against it meaning the same generally.
The Committee, Cranston J went on, also drew attention to the
contrast with its power to make a recommendation under the Regional
Assemblies (Preparations) Act 2003, where a recommendation must
include at least two options for structural change in relation
to each county area in the region: s. 16(2).
18. Moreover, the Committee pointed to its power in s. 4(2)(b)
of the 2007 Act, that it can give only advice specified in the
Request. In this instance, the advice sought referred to “whether
there can be an alternative proposal for a single tier of local
government”: paragraph 11(a) and (b). In paragraph 11(c)
the word used was “better” rather than “best” which,
in the Committee’s submission, is also instructive.
19. The Committee’s function of making recommendations
is conditioned by guidance to which it must have regard: s. 6(2).
The guidance in this case contemplated a single proposal: see
paragraphs 3, 6 and 7. It is not easy to fit the identification
of more than one proposal into the wording of the Request and
Guidance. In terms of the statutory purpose, the Committee pointed
to the advantage of clarity in being able to consult on one alternative
proposal, indicating a contrary intention against the singular
including the plural in relation to the words “alternative
20. Cranston J then tells us that while during the hearing he
was attracted to the legal analysis of the Committee described
above, he was not convinced, on reflection, that it was correct.
“The presumption under the Interpretation Act, and indeed
the common law, is that unless the contrary intention appears words
in the singular include the plural, and vice versa. In my view
that presumption is not to be easily displaced given that its
advantage in overcoming cumbersome verbiage is considerable.
In any event, any contrary intention must be garnered not simply
from one statutory provision but from a consideration of the
legislation as a whole and the purposes behind it.”
21. The learned Judge continued to demolish at length the Committee’s
argument about singular and plural. He then said that the context
of the 2007 Act pointed towards the singular including the plural.
If the Committee’s interpretation were correct it would
confine it to advancing one alternative proposal when, in its
expert judgment, more than one alternative proposal might have
the merit of matching the five criteria, albeit in different
“Potentially it would also mean serial consultation as each
alternative proposal was advanced and, after the expense and disruption
consideration and consultation, rejected. A final factor is that
in particular circumstances the Boundary Committee might decide
that the calculation of the overall benefit of various alternative
proposals would only be clear once possible associated arrangements
have been more fully developed. Since that occurs at a later
stage in the process, the sensible course in some circumstances
might be to place more than one proposal before the Secretary
of State . . .”
22. Finally on this point, Cranston J said that the guidance
from the Secretary of State could not alter the position concerning
singular and plural as it was “subordinate to the statute”.
23. The Committee “has therefore misdirected itself as
to what it could publish, consult on and propose to the Secretary
of State”. East Devon argued that this meant the Committee
must restart the operation from scratch, but Cranston J disagreed:
“Even if I did not regard the matter as premature in judicial
review terms, this is a situation where as a matter of discretion
it would not be appropriate for me to quash the Boundary Committee’s
implementation of the Secretary of State’s request. The
Devon exercise has incurred considerable time, effort and expense
on the part of the Committee, local authorities in Devon and
those who have responded to the consultation exercise. Were the
matter to begin afresh, the public may be at a point of satiation,
so that any new consultation would be relatively unproductive.”
24. The learned Judge said that what must happen is that the
Committee should consider whether it would be right to make further
alternative proposals for Devon. If it were to decide that that
course were appropriate, it would need to comply with the statutory
requirements. However, the Committee could decide, in its discretion,
that responses already received were such that a more limited,
further consultation was all that was necessary.
Mind The Gap
25. Observant readers will have noticed that there was a gap
between the time when the Secretary of State issued an invitation
to local authorities to submit proposals for unitary government
(October 2006) and that when the legislation authorising this
came into force (November 2007). This seems odd, and needs to
26. There was no mention of it in the Devon judgment so I turn
for enlightenment to the 2008 Court of Appeal decision in Shrewsbury
and Atcham Borough Council and Anor v Secretary of State for
Communities and Local Government and Anor (“the
Shropshire and Cheshire Boundaries Case”). This was a similar
fight to prevent smaller authorities being swept away in the
unitary local government. By
an interesting coincidence, leading counsel for threatened East
Devon, Andrew Arden QC, also appeared for the endangered local
authorities in the Shropshire and Cheshire Boundaries Case.
27. There was a similar time gap in that case, and one of the
grounds of appeal advanced by Mr Arden concerned an allegation
that the actions of the Secretary of State in issuing invitations
to local authorities to submit proposals for unitary government
were for that reason ultra vires. The Court of Appeal rejected
this allegation in the ground that they were merely administrative
acts preparatory to anticipated legislation (the 2007 Act), and
that they did not require specific authority. Carnwath LJ said
in his judgment in the appeal (“the Carnwath judgment”):
“Judicial review, generally, is concerned with . . . events
which have, or will have, substantive legal consequences . . .
review proceedings may come after the substantive event, with
a view to having it set aside or “quashed”; or in
advance, when it is threatened or in preparation, with a view
to having it stayed or “prohibited”. In the latter
case, the immediate challenge may be directed at decisions or
actions which are no more than steps on the way to the substantive
event . . . In the present case, the substantive event, if it
occurs, will be the taking effect of the necessary orders under
the 2007 Act, bringing about the creation of the new authorities
and the abolition of the old.”
28. This is relevant to the East Devon judicial review case,
which Cranston J thought had been brought prematurely, and which
as noted above East Devon has decided to take to appeal. In the
parallel Breckland case, which was also tried by Cranston J,
the learned Judge thought fit to include in his judgment (“the
Breckland judgment”) the statement that, as he made clear
at the hearing, he regarded the Breckland action as “a
proper one to be brought”. He made no such statement
in the Devon judgment.
29. Carnwath LJ and Richards LJ disagreed on what general power
authorised the anticipatory acts of the Secretary of State. The
third Judge, Waller LJ, declined to decide between them. I can
give a flavour of the dispute by quoting the following from the
judgment of Richards LJ in the case:
The complex process of government includes a vast amount of work
in relation to the formulation of policy, drafting new legislation
and preparing for its implementation. Carnwath LJ states that
it is not necessary to invoke a “third source” of
power for such work, which is simply “a necessary and incidental
part of the ordinary business of government” (para 49).
To my mind, however, it is still necessary to explain the basis
on which that ordinary business of government is conducted, and
the simple and satisfactory explanation is that it depends heavily
on the “third source” of powers, i.e. powers that
have not been conferred by statute and are not prerogative powers
in the narrow sense but are the normal powers (or capacities
and freedoms) of a corporation with legal personality.”
30. This refers to a controversy I have not space to go into
here, namely whether there is a “third source” of
legislative power. In my textbook Bennion on Statutory
treat prerogative powers in the wide or full sense.
“Never On The Cards”
31. I conclude by summarizing the reasons why, both as a lawyer
and a council tax payer who will have to help foot the bill,
I consider that East Devon are wrong to appeal against Cranston
J.’s decision in the Devon Boundaries Case.
32. I believe that Cranston J. was right to say that East Devon
were premature in launching a judicial review even before the
Committee had submitted its Devon proposal to the Secretary of
State. They exacerbate the consequences of this error in complicating
matters further by a pointless appeal now. What the Committee
should be able to do, in the light of the Devon judgment, is
proceed along the course indicated in that judgment in order
to achieve finality about what they are to recommend to the Secretary
of State. Whatever its outcome, the appeal will delay and complicate
this process without any fruitful result for the residents.
33. There is a further objection to the appeal. Carnwath LJ indicated
that the best time for bringing judicial review proceedings would
be the occurrence of the substantive event, that is the making
of an order under the 2007 Act “bringing about the creation
of the new authorities and the abolition of the old”. There
would be a possible earlier opportunity when the definitive proposal
is submitted by the Committee to the Secretary of State, the
date for which has been postponed to 13 February. In a dictum
set out above Cranston J. refers to the public being brought
to “a point of satiation”. This appeal could lead
to such a point being reached, thereby endangering the ability
of East Devon to bring judicial review proceedings at a future
more appropriate time.
34. An additional key argument, not mentioned in the Devon judgment,
is that this matter is to be determined by reference to legislation
(Part 1, Chapter 1, of the 2007 Act) whose sole purpose is to
achieve single-tier local government. In reality East Devon’s
sole purpose is to maintain the two-tier system by reason of
which it exists. The leading principle in modern statutory interpretation
is what is called purposive construction, which is fully explained
in my textbook. Put shortly, it means that an Act must be so
interpreted as to further its purpose. Chapter 1’s purpose
is to achieve unitary local development in England and Wales,
not maintain the status quo. That sounds the death knell of district
councils such as East Devon.
35. It follows that, acting under Chapter 1, the Committee is
not empowered to propose to the Secretary of State anything but
a single-tier solution in place of the status quo that sustains
East Devon. The Devon judgment includes the statement by Cranston
J. “In Breckland I held that the issue of status quo was
irrelevant to the Boundary Committee’s consideration under
the 2007 Act: paragraphs -”. Paragraph 64 of
the Breckland judgment says: “. . . a comparison with the
existing two-tier structure was never on the cards”.
17 January 2009.
Report of the Royal Commission on Local Government in England
Government and the case for double devolution” in Double
Devolution(The Smith Institute, 2006).
Statement dated 15 January 2009 on East Devon website.
They can be accessed at www.francisbennion.com/2009/003.htm.
This summarizes s. 1(2) of the 2007 Act.
2007 Act, s. 3(1).
See below, under the heading Mind The Gap.
 EWHC 4 (Admin).
Devon judgment, paras 3, 4.
2007 Act, s. 4(1).
the Devon judgment, para. 5.
judgment, para. 10.
judgment, para. 35.
judgment, para. 36.
judgment, para. 37.
judgment, para. 38.
Devon judgment, para. 39.
judgment, para. 40.
judgment, para. 41.
EWCA Civ 148. See also 2007 Act s. 21 (Pre-commencement invitations
judgment, paras. 32-34.
judgment, para. 3.
of the Shropshire and Cheshire Boundaries Case, para. 73.
Report of the Shropshire and Cheshire Boundaries Case, paras.
22-27, 43-71, 72-77, 78-81.
pp. 237-241 of the fifth edition (2008).
judgment, para. 29.