Further Budgetary Provision For Local Government Review In Norfolk (Agenda Item 18)
Report of the Planning and the Environment Portfolio Holder.
The Deputy Chief Executive presented a report which requested the Council’s approval of a further budget of £100,000 to fund a second judicial review of the Boundary Committee’s and Secretary of State’s review of local government in Norfolk, and to advance the case for retaining a county and district Councils system.
He began by reminding Members about the background and highlighted a comment by the Chairman of the Boundary Committee that “it seems inconceivable that there would be no way at all of producing a unitary solution for Norfolk”. It was considered unlikely, therefore, that the Boundary Committee would consent to a status quo.
The three original options (“Wedge”/”Doughnut”/”County Unitary”) had effectively been narrowed down to the latter two, with agreement that Lowestoft would no longer be incorporated into the county of Norfolk under any new arrangement.
The Boundary Committee would be submitting its advice to the Secretary of State on 15 July 2009.
According to the latest letter received from the Secretary of State’s office, it had been made clear that if all Councils affected by the new proposals were to make representations, then the Secretary of State would proceed to lay the matter before Parliament at the turn of the year in the form of a “draft Structural Change Order” to abolish the existing two-tier system of local government in Norfolk. This Order would run its course through both Houses of Parliament and it would mean the inevitable creation of a new Authority or Authorities, which would have to come into effect in April 2011. Early in the New Year, therefore, either an interim Authority would need to be set up, or else lead officers would need to work together to start work on the creation of the new Authority/Authorities. It would also be necessary to take account of electoral issues in terms of where, and how, Members would be distributed under any new arrangement.
The Deputy Chief Executive pointed out that if Members decided to do nothing at this juncture, then it was likely that the above scenario would take place. The impact of a General Election was likely to be predictable in terms of moving fast forwards on this if Labour were to continue as the governing party. It was less clear at this stage exactly what a Conservative Government approach would be.
He argued that if Members wished to retain some sort of control over their future and the future of local government in Norfolk, then serious consideration should be given to the next steps in this process. Any challenge to the Boundary Committee might well need to be followed by one to the Secretary of State which would, at the very least, drive the timetable backwards.
No reputable Barrister would advise such a challenge unless they felt unequivocally positive in terms of there being “good grounds” and a “reasonable chance of success”.
Current legal advice was that the Boundary Committee had misinterpreted and failed to apply the law correctly, ignoring representations from Local Authorities. Consequently there was a strong local case that the Committee’s approach to the Review was unlawful (as set out on page 79 of the Agenda) and it could be argued that there was a robust case to further probe and test the Committee’s proposals.
The Deputy Chief Executive then clarified the key financial implications and risks of any decision to continue with a legal challenge.
(1) Costs are not automatically recovered from litigation cases, even if the case was won, since these come under the Judge’s personal jurisdiction.
It would therefore be sensible to assume that costs would be incurred. These could amount to as much as £150,000.
(2) Costs from the previous legal challenge had been shared among three parties. There was a possibility that any future challenge could be shared among four Local Authorities (including, at this stage, King’s Lynn and West Norfolk). This could potentially bring exposure down to about £40,000 per Local Authority involved. However, he stressed that at this stage two other likely parties had not yet formally confirmed that they would share such responsibility.
(3) If a legal challenge were lost, then it was highly likely that the Boundary Committee would ask for, and be granted, legal costs. These could amount to £200,000.
(4) Additionally, there could be further expense if a Boundary Committee challenge were to be followed by one to the Secretary of State.
Challenge costs could potentially therefore reach the region of £400,000 (plus our own of about £150,000, as outlined at (1) above).
Having set out the risks, however, he then went on to add that there would be no way that the Council would be permitted to proceed to litigation unless it had received the strongest indication that it would have a chance of success. Initial costs (marked at the £100,000 currently requested) would be under continuous review, and legal procedures could be halted at any time - certainly before matters were at the point of being taken to Court, i.e. when expenses would start to escalate very quickly.
If Members gave authority for a further legal challenge to proceed, then the next stage would be for the Boundary Committee/Secretary of State to produce their defence. This would be the paperwork upon which Counsel would make their judgement and recommendations about any further action.
He therefore proposed that:
a) £100,000 should be made available as “working capital” for a second legal challenge to the Boundary Committee.
b) Authority be given to the Chief Executive, in consultation with the Leader of the Council, to release funds for initial legal activity. (Such release to be contingent upon Breckland’s three co-claimants formally agreeing to cover a share of any costs.)
c) Any litigation activity would be dependant upon clear legal advice that the case had a “reasonable prospect of success”.
d) The whole process to be kept under continued and close review, with Members being regularly updated once the initial defence had been lodged.
e) Members would be given adequate time to reflect before any further commitments were made.
There was concern that the Secretary of State might, at a later date, make a completely new proposal. However, the Deputy Chief Executive said that that could not happen: if it went ahead at all, any LGR would need to do so either as originally tabled (i.e. the Unitary model), or as modified by the Boundary Committee. If any decision went as far as the Court of Appeal, it would, effectively, be timed-out. The whole process would then need to start from scratch again - if there were the political will to do so at that stage.
The Leader of the Labour Group challenged the assertions that the District Council would be lost if the current government were to be followed by another Labour one, or that a Unitary Council would be “imposed” on Norfolk, regardless of local opinion. He also believed that the public were largely disengaged from the whole [political] process of the LGR: their concerns remained “best value for money” in terms of the public services and amenities provided by local government. He felt it would be morally indefensible to spend tax payers’ money defending what he believed to be an ideological argument. He felt that the chief winners in such a case would be the lawyers.
Other Members argued strongly in favour of proceeding with a further challenge, saying that many people across the county had expressed real concern about the likelihood of only about 80 Councillors being expected to cover such a potentially wide area. It was felt that there was indeed a moral argument in favour of proceeding, at least initially: people wanted to see and have access to their Councillors. Additionally, Breckland currently had a reputation for the lowest Council tax in Norfolk, and indeed the country. The likelihood was that any changes proposed would result in dramatic year-on-year increases (Band D was cited as an example, and would have a £106 basic annual increase). There were also serious concerns about how good services could realistically be delivered at the “local” level if local government were to be run on a much larger scale. Finally, it was pointed out that people had not actually been asking for a LGR: it was felt that central government was wasting time and money trying to impose something that was not wanted.
(1) to proceed with the proposal to release a further budget of £100,000 to fund a judicial review of the Boundary Committee and the Secretary of State’s Review of Local Government in Norfolk, and to advance the case for retaining a county and district councils system.
(2) release to be contingent upon co-claimants’ commitments;
(3) authority to release funds to be delegated to the Chief Executive in consultation with the Leader;
(4) contribution to be dependent upon continued advice of reasonable prospects of success; and
(5) prospects to be kept under review by the Council.
Mr Goreham and Mr Gilbert voted against this proposal.