December 21st, 2016 by James Goudie KC

The legislation on Combined Authorities (the Local Democracy, Economic Development and Construction Act 2009, as significantly amended by the Cities and Local Government Devolution Act 2016, requires that (1) there be “public” consultation and (2) that consultation be “in connection with the proposals” in a scheme, the consultation being a combined operation by the Combined Authority and the Secretary of State.

In R (Derbyshire County Council) v Barnsley, Doncaster, Rotherham and Sheffield Combined Authority (2016) EWHC 3355  (Admin), Ouseley J said, as regards the consultation being “public” (emphasis added):-

“38.    What the Act requires in my judgment is consultation, not with public authorities or bodies, but with the general public. The consultation must be with those who are judged to be affected to a degree which may make their views of significance to the Secretary of State’s decision. This is not a judgment with a sharp edge but involves degrees of impact on a variety of topics.

  1. The question is whether the consultation was “public” in view of the geographical limit placed in reality on the areas targeted for information and response, …
  2. To the extent that the Combined Authority limited the area targeted because that was the area which would constitute the new Combined Authority, and it therefore thought that it should not target residents beyond its area as a matter of law, it was wrong to do so. There is no such geographic limit. The words “public consultation” are very wide, and deliberately so. There is no purpose behind so artificial a limit in this Act.  There is no reason why a Combined Authority should not wish to find out the views of those outside the area who might be affected, now or in the future, or why the Secretary of State should not want to find out those views. …”

“43.    I also do not think that s113 requires a consultation exercise to be undertaken throughout the whole of a county council area simply because the whole county is to become a constituent member, or one of its district council is to become one, contrary to Mr Goudie’s submissions.  No such requirement is stipulated for, and again I judge that such a specific and large requirement, if intended, would have been made express by Parliament when amending the legislation to enable this sort of change to occur.”

“45.    As I have said, the words “public consultation” express a broad requirement.  This needs a judgment from the Secretary of State as to what areas or people require to be consulted for the purposes of s113, in relation to the effect of a particular scheme. The Combined Authority consultation, if it is to satisfy the Secretary of State that he need not undertake any further public consultation, needs to be based on a judgment as to the areas or people to be consulted, which is both lawful and sufficient to satisfy the Secretary of State that he need undertake no further public consultation.”

As regards consultation being “in connection with the proposals in the scheme”, Ouseley J found the Combined Authority’s consultation to have been flawed. The views of the public were not sought on the membership of the proposed expanded Sheffield City Region Combined Authority (“SCRCA”). The views of the public were not sought on whether Chesterfield Borough Council, in Derbyshire, should be a part of the Combined Authority.  Ouseley J said (emphasis added):-

“59.    … Fundamental to a consultation which would achieve the statutory purpose of s113 is that at least the major proposals in the scheme should be identified and be made the subject of consultation, with adequate, even if simplified, material provided to explain it so as to permit of sensible response. I do not think that a consultation is “in connection with the scheme”, merely because it asked questions which were connected to the proposals, if major issues were nonetheless omitted.

  1. Chesterfield BC’s new role in the SCRCA is one of the fundamental proposals or changes to be wrought by the scheme. Although various questions in the questionnaire touched on Chesterfield BC becoming a constituent member, no question actually asked whether respondents supported that or not. Respondents via the questionnaire could attach additional evidence, and so express the view that that should not happen, but their mind was not directed to that issue.”

“69.    For a consultation to be lawful, if questions are asked, they must be ones which can be properly understood by the general body of consultees and can therefore generate answers, which the consulting body can properly understand in its decision-making process. …”

“72.    … As the questionnaire was the major vehicle for public response, it ought to cover the major proposals of public controversy in the scheme. Put another way, the public were not in substance consulted about a major proposal of the scheme.”

“74.    The Secretary of State does not know the views of the public on whether Chesterfield BC should be part of the SCRCA in the same way he does of the public views given in response to the questionnaire on other topics. In my judgment something has gone seriously wrong with the consultation process in this respect because the major vehicle for public response arbitrarily omitted one of the major controversial proposals in the scheme.”

Ouseley J also considered the fairness of the consultation.  He distinguished the Supreme Court decision in R (Moseley) v Haringey LBC (2014) UKSC 56, [2014] 1 WLR 3947 (“Moseley”).  With regard to there being no reference in the consultation to the proposed North Midlands Combined Authority, Ouseley J said:-

“88.    … there was no need for the North Midlands proposal to be referred to as an alternative.  I see nothing in Moseley which, on either of the two approaches it contains, goes beyond requiring the consulting body to explain alternatives or possible alternatives which it itself has discarded. There is no suggestion of any obligation on the consulting body to put forward ways in which a different objective could be achieved by another body. The North Midlands proposal is not one which the Combined Authority could bring about.  It is not an alternative to the proposed scheme for the Combined Authority.  It is not an alternative way of achieving the same objective for the Combined Authority; it is not even a different objective for it. It would provide for participation in a different regional body for those proposed for inclusion in the Combined Authority. It is not incumbent, whether under the heading of fairness, or for specific compliance with s113, for the possibility of Chesterfield BC joining that other authority to be raised for consideration as an alternative in this consultation, or even mentioned as a basis for rejecting the proposed scheme. That possible option is one upon which an opponent can encourage opposition, but that does not make it an alternative of the sort envisaged by Moseley, which the proponent of a scheme should identify and refer to in the consultation about another proposal.”



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