Court of Appeal refuses councils permission to appeal ruling on free local newssheets

The Court of Appeal has refused to grant Hackney and Waltham Forest Councils permission to appeal a High Court ruling dismissing the two London boroughs’ challenge to government directions restricting the frequency with which they can publish their free local newssheets.

The case of London Borough of Hackney & Anor, R (on the application of) v Secretary of State for Housing Communities and Local Government [2019] EWHC related to "Hackney Today" and "Waltham Forest News", which for many years have been published by the respective local authorities approximately once a fortnight.

The councils raised a number of grounds of challenge to the lawfulness of the Secretary of State’s decision:

• Misdirection in law and lack of proportionality;
• Abuse of power;
• Wednesbury unreasonable/irrationality and breach of the Tameside duty of inquiry;
• Breach of the public sector equality duty; and
• State aid.

Dismissing the challenge, Mrs Justice Andrews found amongst other things:

• The Secretary of State adopted the correct legal approach to the exercise of his discretion. He gave the councils a proper opportunity to persuade him that what he regarded as a significant and substantial departure from the relevant Code was justified, but having taken their representations into account, he rationally concluded that it was not.
• There was no obligation to seek further information or evidence in order to make his decisions in respect of each borough, and the Secretary of State rationally concluded he did not need to do so.
• Nor was there any obligation to wait until after a review had been carried out to see how the Code was working, though the Secretary of State expressly considered whether he should do so and decided not to.
• The Secretary of State’s decision to go ahead “came nowhere near an abuse of power; indeed, it might have been said that he was abrogating his responsibilities, had he failed to act as Parliament intended”.
• The decisions to enforce the Code were taken with sufficiently informed awareness of the potentially detrimental impact on persons with protected characteristics who lived within the affected boroughs, and after consideration of the steps that might go some way towards ameliorating it.

Hackney acknowledged that following the Court of Appeal’s decision, there were no more more legal options available to it, “so Hackney Today will no longer be published fortnightly”.

Philip Glanville, Mayor of Hackney, said: “It’s extremely disappointing that we will no longer be able to publish Hackney Today fortnightly. As well as saving the council tens of thousands of pounds by not having to pay to advertise statutory notices in the local press, it was by far one of our most effective and popular ways to communicate with our diverse communities…..

“Taking legal action was not something the council did lightly. However, our priority has always been about informing and empowering our diverse communities, as well as making the most of our reduced funding, and we believed the strong case for continuing fortnightly publication of Hackney Today justified our judicial review at the High Court and our request to appeal. The money saved by not having to pay to advertise statutory notices - such as planning applications and road closures - during this period vastly outweighs the legal costs we incurred.”

The Mayor added: “We now face a situation where tens of thousands of pounds will have to be diverted away from services and towards paying for notices in a local newspaper where they will be seen by far fewer people, and a heightened risk of people who may benefit from council services and opportunities no longer finding out about them.”

A spokesperson for Waltham Forest said: “We are disappointed that council taxpayers' money will now have to be spent on publishing public notices in an alternative publication. We only produce Waltham Forest News because the government, by law, insist that councils pay to publish statutory notices in a printed newspaper.

“These rules mean local authorities currently pay an estimated £68m in council taxpayers’ money to comply with these rules. Waltham Forest News was our way of complying that also helps us communicate with all our residents, particularly those who are hardest to reach or who don’t have regular internet access.”

The spokesperson added: “These are often the people most in need of help from our services. We know that our residents appreciate a newspaper that champions both the people and the area giving every household a vital guide to what’s on and what’s great about Waltham Forest.

“We will now be looking at all options to how best to communicate with our residents so that they don’t lose out because of this ruling.”