Despite making no mention of it in their election manifesto, Reform-led councils in Essex, Suffolk and Norfolk are now trying to stop the Government’s plans to reorganise local government across the East of England. The party won control of all three county councils in May, and the authorities have now asked the courts for permission to launch a judicial review. A judge must decide whether there is sufficient evidence to justify a full hearing, which would inevitably disrupt the process.
Confusion and costs
Whatever the outcome of a judicial review, the legal process will take time, and incur substantial costs for the taxpayers. Suffolk has reserved up to £500,000 for legal costs, and the other cases will involve similar sums. It will create uncertainty and disruption to 29 councils and their 40,000 staff and families. In Norfolk, it appears that Reform councillors have gone ahead without any debate. And the Chief Executive of Norfolk County Council, who had been identified as the lead officer for the reorganisation work in Norfolk, has resigned.
What is planned
In March, the secretary of state approved plans to replace the 29 existing authorities (counties, districts and unitaries) with a simpler pattern of 11 unitary authorities, with three each in Norfolk and Suffolk. Each unitary would be responsible for all local government services in their areas.
Both county councils, under their previous Conservative administrations, opposed this plan, proposing two single county-wide unitaries. But the three-unitary models was supported by all the existing district councils in Suffolk, by all but one in Norfolk and by the public in the consultation.
South Norfolk argued for a two-unitary model in Norfolk, and has indicated that it also intends to seek judicial review, but it would appear to have missed the deadline for filing the application by 25 June.
Judicial review
In a judicial review the court cannot decide whether the decision was itself right or wrong. But it can decide whether the secretary of state acted:
- unfairly in procedure: if he did not have the legal authority to make the decision; or if he failed to follow required procedures, such as proper consultation, giving a fair hearing or avoiding bias;
- irrationally or unreasonably: if the decision is so unreasonable that no reasonable authority, properly directing itself in law, could have made it;
- disproportionally: if the measure went further than reasonably necessary to achieve a legitimate aim.
If the court finds against the government, it can “quash” the decision, in which case the government must abandon the plan, or take the decision again lawfully.
Essex was the first to publish the outline of their case, and we commented on this in a previous article. Suffolk have also now done so, making a rather different argument, with two grounds. Norfolk and South Norfolk have not yet published their cases.
The power of the secretary of state
The first argument is that the secretary of state does not have the legal power to make the decision. Suffolk argues that the secretary of state can only make changes based on existing boundaries, but in some cases parishes which are currently all in one district will be redistributed over two or three unitaries. They also argue that the Boundary Commission should have been involved.
The government’s response is that the secretary of state can approve a reorganisation into three areas using the existing boundaries, and then use different powers to redraw those boundaries. Suffolk argues that this is a deliberate undermining of the purpose of the legislation.
Ignoring the criteria
The second argument from the county councils is that the decision is unreasonable because it departs from the Government’s published criteria, and that the secretary of state has rejected the reasonable advice of his civil servants.
The guidance was that unitaries should have populations of around 500,000, but the three proposed unitaries in Suffolk would be significantly smaller. The county argues that insufficient attention was given to the financial sustainability of smaller authorities and their ability to deliver social care. Perhaps ironically, given Reform’s policies on equality more generally, they also argue that smaller authorities will have greater difficulty meeting their equality duties. They also argue that the advice of the civil servants was in favour of the single unitary model.
The government responds that it had made clear that the criteria were guidance, not hard rules, and the secretary of state has the right to weigh the various arguments. They point out that although the civil servants’ advice was, on balance, in favour of the single unitary model, both options met the criteria, and the three unitary model was favoured by the district councils, and by respondents in the public consultation, as being better able to reflect local needs.
Costs and timing
Judicial review is not cheap. Suffolk County Council say they do not expect the costs to exceed £500,000. And there will also be costs in uncertainty and delay, potentially affecting the careers of tens of thousands of staff.
In practice, the permission stage of judicial review rarely takes less than two months. So, even allowing for the urgency, it is unlikely that a decision on the preliminary stage will be reached before September. If permission to proceed is granted, there will then be further months for a full hearing of one or more of the cases. Councillors in Norfolk have already ordered a halt to the planned preliminary work, although it is not clear whether they have authority to do this, whether this will also happen elsewhere, and what its impact will be in the overall timetable.
Who is deciding?
Suffolk and Essex have published their cases, but Norfolk has merely reported that the deputy leader has written to the secretary of state. This is surprising. Although blocking reorganisation was not in Reform’s election manifesto, and it involves substantial legal costs for the taxpayers, there is no record of a formal decision by the council itself. And when we queried this, the council’s press office simply referred us to the Reform councillors, not to any recorded decision.
Next steps
The formal transfer of powers to the new authorities is not due until 2028, but the next deadline is next May, when ‘shadow’ councillors are to be elected for the new authorities. Reform clearly wants to disrupt the process. Whether they manage that is now in the hands of the judges.
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