High Court judge quashes Exeter and Norwich unitary orders

The final nail in the coffin for the proposed unitary authorities in Exeter and Norwich looks to have been hammered in today after a High Court judge quashed the orders establishing them.

Mr Justice Ouseley ruled that the previous Secretary of State for Communities and Local Government had changed his decision-making approach in an unfair and unlawful manner.

John Denham had repeatedly set out the basis upon which he would refuse proposals and “without warning adopted a wholly different approach, and reached decisions which, on the original approach, he would not have reached”. The judge said: "On the face of it, the decisions taken by the Secretary of State and the Minister simply made a mockery of the consultation process."

The judge found that the process would not have had to be restarted to be fair – the Secretary of State could have issued an alert as late as in December 2009 without creating any delay at all.

Mr Justice Ouseley added: “The problem arose entirely because of his late choice to change his approach, having failed to take any of the many opportunities to signal the problems in advance.”

Earlier the judge said: “I am satisfied that this change in approach was unfair and deprived the county councils of the opportunity to make their case in the consultation process. This was in the end carried out on one basis which they addressed; but the target was moved by the Secretary of State in a way which he could readily have signalled, and without any or at worst any great delay.”

Mr Justice Ouseley said he did not suppose the unfairness was intended – there was no evidence that the minister had changed his mind until after the closure of the consultation process – but concluded that it was “real, plain and unlawful”.

The High Court judge recognised that the question of whether Exeter and Norwich should become unitaries was “a political one at heart and involves issues which it is not for the court to rule on”.

He also acknowledged that the orders had been approved by Parliament after debate, including on the merits of the orders and the decision-making process, and that the courts should arguably in such circumstances be slower to intervene.

However, Mr Justice Ouseley pointed out that “Parliament enacted the Local Government and Public Involvement in Health Act 2007, requiring statutory guidance to be given, and enabling the Boundary Committee’s advice to be sought on the application of the guidance to the issues a proposal gives rise to, and requiring consultation; it is taken to know that the courts examine the  lawfulness of that process whatever view Parliament may take of the merits and wisdom of approving the orders.”

Norfolk County Council welcomed the High Court ruling. In a statement the local authority said: "It is a very strong and unequivocal judgement and vindicates our decision to challenge the previous Secretary of State's decision in the High Court. The Secretary of State has conceded payment of our costs although the precise amount to be paid has yet to be determined."

Norfolk's leader Daniel Cox added: "Any uncertainty about the legality of the orders is now over and for that, I am delighted because it has taken up time and money we can ill afford. Our prime interest in opposing a Norwich unitary has always been the long term health and well being of Norfolk and Norwich."

The leader of Norwich City Council, Steve Morphew, admitted disappointment at the ruling and said the outcome was "a real missed opportunity" for the city. He insisted that the new council would have repaid its set-up costs in two and a half years and delivered £30m in savings for Norwich taxpayers by 2021. It is unlikely that the council will seek leave to appeal.

The judgement comes with the coalition government having already signalled its intention to block the creation of the unitaries, and to bring an end to the consultation process for Suffolk.

Last month Eric Pickles, the new Secretary of State, introduced a Bill revoking the orders creating them, claiming that it was “ludicrous that taxpayers’ money is being wasted imposing a council reorganisation”.

But the Bill’s passage was delayed when a House of Lords motion was passed, requiring Parliamentary officials to examine whether it was in fact a hybrid bill. The parliamentary process to end the local government review process will have to continue.