LAW REPORT: Modification of commission county change was lawful

Regina v Secretary of State for the Environment, ex parte Berkshire County Council; Court of Appeal (Lord Justice Kennedy, Lord Justice Auld, Mr Justice Tuckey); 24 January 1996

The Secretary of State is entitled to modify the local government commission's recommendation of replacing a two-tier structure of seven councils in a county with five unitary authorities with a boundary change in one by giving effect to the structural change but not implementing the boundary change.

The Court of Appeal allowed the Secretary of State's appeal against Mr Justice Collins's decision that the Secretary of State's modification of the commission's recommended changes to the structure of the Royal County of Berkshire was unlawful.

The Local Government Act 1992 established the commission to consider the structure of local government. It empowered the Secretary of State to make orders changing the structure of local government.

The changes that the commission could recommend included, under section 14, a structural change by replacing two tiers of local government, such as a district council and a county council, with a single tier and a boundary change. Under section 17(1) the Secretary of State could give effect to all or any of the commission's recommendations with or without modification.

The Secretary of State directed the commission to conduct a review of Berkshire. The commission recommended that the existing two-tier structure of seven district or borough councils (including Berkshire County Council) be replaced by five new unitary authorities. Four proposed authorities reflected the existing district and borough councils. The fifth was a new unitary authority for Bracknell Forest Borough Council and the Royal Borough of Windsor and Maidenhead combined.

The Secretary of State modified the commission's recommendations by accepting a unitary structure for the whole of Berkshire but with six unitary authorities, based on the existing councils. Berkshire applied for judicial review of the Secretary of State's decision on the ground that he was implementing something different, rather than a modification of the commission's recommendation.

Stephen Richards and Robert Jay (Treasury Solicitor) for the Secretary of State; James Goudie QC and Paul Nicholls (Council and Borough Solicitors) for Bracknell Forest Borough Council and the Royal Borough of Windsor and Maidenhead; Duncan Ouseley QC and Clive Lewis (Sharpe Pritchard for County Solicitor) for the Royal County of Berkshire.

Lord Justice Kennedy said that the commission recommended the type of changes defined in section 14. That empowered the Secretary of State to give effect to all or any of the recommendations with or without modifications.

For each of the five areas considered the recommendation was that there be structural change to a single tier of local government, and for one of those five areas there was recommended a boundary change which, for economic reasons, the commission considered necessary to facilitate the structural change.

The recommendations were free-standing in that the Secretary of State could have accepted the recommendation to create a unitary authority in one borough and rejected the remaining recommendations, but there was also a degree of interlinkage as was demonstrated if he decided to create four unitary authorities but took no action in relation to the fifth.

Section 17 had to be read in context and given a generous interpretation. The primary issue addressed by the commission was the form of local government for Berkshire - one-tier or two-tier. The boundary change proposed, although substantial, was only proposed to facilitate the proposed structural change. If the boundary change proposed had been geographically quite minor but the Secretary of State's hands had been tied, he could not have rejected the boundary change and given effect to all the proposed structural changes having modified the area in which one of structural changes was to take effect. That could not be how section 17 was intended to operate.

The recommendations were for unitary authorities throughout the county, with one boundary change. The Secretary of State considered the boundary change unnecessary to facilitate the structural change which he was prepared to implement. His order gave effect to all the commission's structural change recommendations, albeit with modifications in relation to one geographical area. The Secretary of State did not exceed his powers.

Lord Justice Auld and Lord Justice Tuckey agreed.

Ying Hui Tan, Barrister