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The author George Bernard Shaw described the 1916 Easter Rising as a clash between a pram and a Pickford's lorry. And the legal challenge to the Government's unitary proposals by Shrewsbury & Atcham and Congleton councils was reminiscent. For, while the councils fought valiantly and struck home on a few points, ultimately, the might of Whitehall prevailed when the Court of Appeal delivered its death-blow on 4 March. The councils' artillery launched some heavy bombardment in a variety of areas. The initial shelling covered legal powers; inconsistency with the Local Government Act 1992 and the European Charter of Local Self-Government; moving of the goalposts from a broad cross-section of public support to a ‘reasonable likelihood' test; and government unfairness in including on its website only the web pages of the promoting and not the opposing authorities. This was followed up by two airborne strikes against the decisions of the minister on 5 December to implement the proposals in question, and the consequent orders laid before Parliament. The warheads included arguments that these processes were vitiated by the procedural defects previously adopted. In particular, the December 2007 decisions were effectively predetermined, in that they were implementing the earlier July 2007 decisions without proper reconsideration. Also, to the extent that the December actions were purporting to ratify the July decisions, those were a nullity and therefore, incapable of ratification. Nevertheless, despite valour in the field, none of the operations was able to fatally penetrate the defences and government generals were able to sup safely in their bunker. The Court of Appeal's judgement contained some interesting, but ultimately, unresolved discussions on the powers available to the secretary of state. Lord Justice Carnwath thought that while the Government could do whatever a private person could, it could exercise its powers only for the public benefit. However, Lord Justice Richards thought such constraints were ‘unnecessary and unwise'. And while there was inconsistency with the Local Government Act in 1992, it was ‘particularly inappropriate' to describe the pre-2007 actions as a ‘nullity', since these were ‘entirely informal processes', and ‘... never intended to have legal effect in themselves'. The European Charter is also not part of domestic law, and cannot be relied on as a source of substantive rights or restrictions. While the court could understand frustrations at the Government moving the goalposts on the issue of public support, there was no legitimate expectation or other legal peg on which to hang this argument. And on the website issue, there was no evidence that any actual prejudice had been caused to the councils, or that potential supporters were lost. As indicated, the councils argued that the ministerJohn Healey's December announcement merely adopted the decision of July 2007, and did not encompass any kind of reconsideration. They argued that the reasonable likelihood test applied was whether secretary of state Hazel Blears should change her mind about her earlier decision. This was ‘a decision to adopt an earlier decision that she had no power to take, pursuant to a process she had no power to embark on'. However, the court considered that the councils' overwhelming difficulty was the unchallenged evidence of a genuine reconsideration by the Government of the merits of the proposals in question. No doubt, because of the legal challenges, the Government had included in the Local Government and Public Involvement in Health Act 2007 a provision – Section 21– covering unitary invitations issued before the commencement of the relevant part of that Act. This essentially provides that it is immaterial that any invitation, guidance, proposal or consultation was instituted before, rather than after the commencement of the relevant provisions in the Act. In the circumstances, the court found it ‘... impossible to avoid the conclusion that parliament has – if only retrospectively – given its stamp of approval to the procedure in this case, and there is no evidence that the authorities have been prejudiced in presenting their opposition'. Given that the Government can always legislate to implement its will, legal challenges, on the issues in question, were always, ultimately, going to be forlorn and, at best, merely a delaying tactic. However, such challenges can provide a healthy check on unbridled executive power and a positive expression of local democratic unease. Nicholas Dobson is a senior consultant of Local and Public Law

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WHITEHALL

Ministers decide...

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