Council fails in bid to halt local magistrates court closure

June 17, 2011

A council in Wales has failed in a bid to halt the closure of an efficient local magistrates’ court that had recently been the subject of a £2m refurbishment, with the High Court ruling that the Lord Chancellor had committed no errors in law in making the decision.

In The Vale of Glamorgan Council v The Lord Chancellor and Secretary of State for Justice (Rev 1) [2011] EWHC 1532 (Admin), the local authority challenged the Ministry of Justice’s decision to close the court in Barry and merge its operations with those in Cardiff.

The court was one of 93 magistrates’ courts and 49 county courts to face the axe following the Court Service’s Court Estates Review Programme. The closures were announced in Parliament on 14 December 2010.

Before three judges in the High Court – Lord Justice Elias, Mr Justice Beatson and Mr Justice Hickinbottom – Vale of Glamorgan argued that:

The Lord Chancellor had failed to consider alternative means of achieving the increased utilisation of the courts at Cardiff and as a related ground of challenge, that he failed to consult about any such alternative scheme
The Lord Chancellor had failed to give proper weight to a range of considerations, including the fact that the Barry court was highly successful; that it was a purpose built court which had been the subject of considerable recent expenditure; that it was better suited for domestic violence cases in the locality; and that there would be seriously adverse economic consequences resulting from the closure.
The Lord Chancellor had failed properly to give proper consideration to the aggregate cost on the public purse, and in particular to the fact that Barry is an economically deprived area which had been identified by the Welsh Assembly as one of seven Strategic Regeneration Areas in Wales.
In all the circumstances the decision was perverse in a Wednesbury sense.
The Lord Chancellor gave inadequate reasons for the decision.

The High Court rejected the council’s submissions. Giving the judgment of the Court, Lord Justice Elias said there was no general principle that a minister entering into a consultation must consult on all the possible ways in which a specific objective might arguably be capable of being achieved. “It would make the process of consultation inordinately complex and time consuming if that were so.”

The Lord Chancellor was entitled to identify the issues for consultation in the way he did, the judge said. Alternative schemes could have been suggested with respect to most, if not all, of the 110 courts originally proposed for closure. “It would impose an impossible duty on the Lord Chancellor if he had to consult on all the alternatives identified with respect to each court, or even if he had to consider each proposed alternative to indicate why he thought that further consultation would be inappropriate.”

Lord Justice Elias also found that:

Issues such as the success of the court and recent expenditure were specifically addressed in the MoJ’s responses document. “As a matter of fact, therefore, it cannot be said that the Lord Chancellor failed to have regard to these matters. The real complaint has to be that the Lord Chancellor failed to give them the weight which the applicant believes they should have been given. However, it is trite law that the weight to be given to any particular consideration is for the decision maker.”
A precise estimate of the cost of closure would be impossible to make. “Bearing in mind in particular that the consultation was taking place nationally, the Lord Chancellor would not be in a position to assess the likely losses to other public bodies which might result from his decisions.”
The Lord Chancellor appeared to have misunderstood what the consultees had submitted about Barry’s status as a regeneration area and the significance of being given that status. However, the potential economic impact had been considered, “albeit briefly”, in the impact assessment. The Lord Chancellor had considered the position and reached a considered view about it. “This does not display any error of law,” the judge said. Also, the Lord Chancellor was not obliged to treat the suggestion that the court in Barry might be an iconic symbol in a depressed area as a material consideration.
It is “a rare case indeed” where it can be said that a decision is so irrational that no reasonable Minister, properly directing himself in law, could have made it. “This is not such a case.” While powerful submissions were made in support of retaining the Barry court, which may have persuaded some ministers, the reasons for closing the court were cogent and clear. “They were the perception that significant savings could be made by merging the two courts in a manner which the Lord Chancellor was entitled to believe would not overall prejudice the efficiency of the system, notwithstanding that it would have some adverse consequences. This was not an irrational conclusion.”
The reasons for closing the court were “perfectly clear”. The Lord Chancellor accepted many of the points being advanced by consultees about the efficiency of the Barry court, but he concluded nonetheless that the savings to be achieved from merging two operations into one justified his decision. No one reading the consultation paper, the responses to it, and the two impact statements could be under any doubt why the decision was taken. “Indeed, in our view the response was much fuller than strict compliance with the legal obligations would have required.”

Lord Justice Elias concluded: “We appreciate that the decision to close the Magistrates' Court in Barry has caused much distress to the magistrates and staff, to users of the court, to the Council, and to the wider community. There are powerful arguments in favour of retaining the court.”

But the judge said these issues were all addressed to the Lord Chancellor. Despite counsel for Vale of Glamorgan’s “eloquent plea” to the contrary, his argument “was in substance seeking to persuade the court to engage in the merits of the decision and to trespass into the realms of resource allocation, which is not the court's business”.

Lord Justice Elias acknowledged that this was an important case for the people of Barry, and the Court gave permission to pursue the application for judicial review. “However, having heard the arguments, we have come to the clear conclusion that there was no error of law in the approach of the Lord Chancellor and therefore this application fails.”

Cllr Gordon Kemp, Leader of Vale of Glamorgan, said the outcome was disappointing but “with reluctance” the council would have to accept the decision of the Court.

“The judges recognised the importance of this case for the people of Barry and that there were powerful arguments in favour of retaining the Court,” he said. “The judges further acknowledged that the decision to close Barry Magistrates Court caused much distress.”

Cllr Kemp urged the Lord Chancellor “in light of the comments made by the judges” to formally reconsider – even at this late stage – the decision to close the court.

A similar challenge to a decision to close a court in Sittingbourne, Kent – brought by law firm Robin Murray & Co – was also rejected by the three judges.

It had been argued that axing this court would have required some local residents to travel for more than two hours to the nearest alternative courts, in contravention of MoJ guidelines. Counsel for the claimant also alleged that the decision was perverse and there had been a failure to consider disability equality duties.

An application in relation to the closure of the magistrates’ court in Cardigan had been renewed after permission was refused on the papers, but was subsequently withdrawn.

Philip Hoult