Lord Justice Elias :
Introduction.
This is the judgment of the Court.
- Following a review of court buildings throughout England and Wales, in a decision announced on 14 December 2010, the Lord Chancellor decided to close a number of county courts and magistrates' courts. In these proceedings the Council seeks to challenge the Lord Chancellor's decision to close the Barry Magistrates' Court.
- On 8 April 2011 Mr Justice Beatson ordered a "rolled up" hearing before a Divisional Court. Accordingly we must first consider whether to grant permission to pursue the application, and if so, to determine the application on its merits.
- At about the same time as these proceedings were instituted, two challenges to decisions to close other magistrates' courts were filed, one relating to Sittingbourne in Kent and the other to the magistrates' court in Cardigan. The three cases were not listed to be heard together because while the general policy background is the same, the position of the courts concerned and the grounds of challenge differed. In the case of Cardigan, permission was refused on the papers, and although the application was renewed to an oral hearing, it was withdrawn shortly before the hearing. The same court heard the Barry and Sittingbourne cases and judgment in each case is being handed down at the same time.
The background.
- Courts are established and maintained under the Courts Act 2003. Section 1 places a general duty on the Lord Chancellor:
"To ensure that there is an efficient and effective system to support the carrying on of the business of … magistrates' courts."
- Section 3 is headed "Provision of Accommodation" and sub-section (1) is as follows:
"The Lord Chancellor may provide, equip, maintain and manage such court houses, offices and other accommodation as appear to him appropriate for the purpose of discharging his general duty in relation to the courts."
These are therefore broad and general powers. They neither require any consultations before court houses are opened or closed, nor do they seek to identify the considerations which the Lord Chancellor must take into account when making such decisions.
- Between 2005 and 2009 the work in county courts and magistrates courts has reduced. In the case of magistrates' courts the reduction was by about a third. Since 2009 successive Governments have sought to reduce the cost of the Court Service by rationalising the court structure, closing under-utilised courts and courts with inadequate facilities, and transferring their work elsewhere.
- Before the start of the 2010 Spending Review Her Majesty's Court Service ("HMCS") commenced a Court Estates Review Programme. The Consultation was launched on 13 October 2009 and on 18 March 2010, prior to the General Election of that year, it was announced that some 20 magistrates' courts would be closed. This still left 330 magistrates' courts in operation. This was considered still to be too many and the location and number did not reflect the changes in population and transport and communication links over the years. Those considering policy also took account of the adequacy of the facilities for court users at individual courthouses.
- Following the General Election in 2010, further courts were identified for potential closure. The Lord Chancellor considered that since public finances were under pressure it was imperative to eliminate waste and reduce costs. It was his view that this could be achieved without compromising the efficiency of the Courts' Service and whilst still ensuring that a court would be within reasonable travelling distance of those using the court.
The 2010 consultations.
- On 23 June 2010 a consultation exercise throughout England and Wales was announced by a written Ministerial Statement in Parliament. Sixteen consultation papers were published for the fifteen areas of England and for Wales. In total it was proposed to close 103 of the 330 magistrates' courts and 54 of the 219 county courts. The specific consultation document with which we are concerned in this case is the "Proposal on the Provision of Court Services in Wales".
- The consultation period ended on 15 September 2010. In total, there were over 2,500 responses to the sixteen consultation papers. After the various responses were considered the government decided to close a total of 93 magistrates' courts, including the Barry Court, and 49 county courts. The decisions were announced in Parliament on 14 December 2010.
- The nature of the concerns which motivated the consultation exercises were identified in the following way:
"HMCS is committed to providing a high quality court service within a reasonable travelling distance of the communities that use it, while ensuring value for money to the tax payers.
HMCS currently operates out of 530 court houses – 330 magistrates' courts, 219 county courts, and 91 Crown court centres. However, the number and location of these does not reflect changes in population, work load or transport and communication links over the years since many of them were opened. This has resulted in some courts sitting infrequently and hearing too few cases. Some buildings do not provide suitable facilities for those attending or are not fully accessible for disabled court users. A number of magistrates' courts do not have secure facilities for prisoners. Other agencies with whom we work across the justice system are also put under strain by the need to work at a number of different courts in the same area, some of which are in close proximity to each other.
When public finances are under pressure, it is vital we eliminate waste and reduce costs. This consultation sets out how we believe we can best meet the justice needs of the communities in each area and invites comments on whether work from the courts we propose to close could be moved to nearby courts which have sufficient capacity and, in the majority of cases, better facilities. By using these courts more efficiently we hope to save public money while also improving the services we provide for court users." (page 3)
- The document goes on to say that court users should not have to make excessively long or difficult journeys, but that this was not the sole or even the primary concern of the proposed changes. It then added this:
"The speed of case, outcome, the quality and efficiency of the service we provide and an environment which commands respect for the justice system and the safety and comfort of court users, are much more significant to delivery of effective local justice across the communities in England and Wales." (page 4)
- The paper identified a number of principles which were to inform the decisions on closure. These included the aim of improving utilisation to at least 80%; to ensure access to court so that a majority of the public would be within a 60 minute commute of their nearest court by public transport; to move towards larger courts; and to provide greater flexibility of criminal and civil courts with tribunal hearing centres.
The position of the Barry Magistrates' Court.
- In relation to the proposal to close Barry specifically, it was recognised that as a result of recent refurbishment work (which in fact cost some £1.9 million) the premises met current court standards, and that there was disabled access and adequate parking. It was also noted that Barry was the only courthouse for the Vale of Glamorgan Local Justice Area. The reason for the proposal was stated to be the considerable savings that could be made from closing the Court and merging it with Cardiff, which could comfortably absorb all the work. The court was nine miles away from the Cardiff courts and there were buses and trains which took about half an hour. It was estimated that the annual savings would be around £282,000 and that the closure of the Barry Courthouse would remove the need for HMCS to undertake backlog maintenance of around £255,000.
The Responses to the Consultation.
- There were 45 responses to this proposal of which 41 were opposed to the merger, two were neutral, and two, including the Crown Prosecution Service, were in favour. The Lord Chancellor produced a summary of responses to the consultation in Wales. In addition he provided an Impact Assessment and an Equality Impact Assessment each of which made additional observations on the anticipated effect of implementing the proposals.
- This summary of responses identified a whole series of issues that had been raised with respect to the proposed closure at Barry and it dealt with them in some detail, stating why it did not consider them sufficiently powerful to alter the provisional decision to close the Court. Specifically, the summary identified the following matters which had been canvassed as reasons why the court should not be closed:
(1) It was contended by a number of consultees that the Cardiff Magistrates' Court did not have the capacity to receive all the work from Barry. Indeed, the Senior Presiding Judge raised concerns on that point. The response was that there were twelve courts at Cardiff with two additional courtrooms available if necessary; that the combined workload would produce a utilisation rate of 81% for Cardiff; and that tribunal work in the region would also be listed, to give a total utilisation rate of 87%.
(2) It was suggested that Barry could be utilised more fully by, for example, introducing tribunal work, using it as a coroner's court or as a council tax court, or for training, or by providing a family court. The response was that this could not justify keeping the court open since there were other premises available for each of these purposes. As to family work in particular, it was noted that this could be accommodated in the Cardiff Civil Justice Centre (and we were told that in fact a decision to do so has recently been made).
(3) It was pointed out that the Barry courthouse was a modern purpose built court that was fit for purpose, that had been refurbished at a cost of almost £2million, and that it has been very efficiently run. These points were all conceded but the response was that they did not tell against the proposed closure. The fact that there had been recent expenditure did not justify unnecessary and avoidable future expenditure, however satisfactory the court might be; and there was no reason why the performance of the Barry magistrates should not be replicated in the Cardiff Court.
(4) A powerful submission was made, particularly by Atal y Fro (a local support group for victims of domestic violence), that Barry was an important Specialist Domestic Violence Centre, and that this would be undermined if the work were to be transferred to Cardiff. It was suggested that the parties might meet each other travelling to the court on public transport, and that Barry was unique in the area in having separate facilities (including a separate entrance) for complainants and their witnesses. The problems of the transfer of such work to Cardiff were highlighted, it was said, when the work was temporarily moved in 2008-9 when the courthouse in Barry was being refurbished. The response was that Cardiff was also a Specialist Domestic Violence Centre, and it had separate facilities for vulnerable witnesses, when required; and, although they had no dedicated separate entrance, multi-entranced buildings (including Barry) were to be reviewed because of the security difficulties they pose. In any event, particularly vulnerable witnesses could be given support to limit the possibility of meeting defendants on the journey to court and to gain access to the court in Cardiff by a separate entrance, if needed.
(5) It was also noted that the effect of the proposal would mean that the largest town in Wales had no magistrates' court and that the Vale of Glamorgan would be the only local authority in Wales without a courthouse. The response was that this was not a relevant consideration since HMCS was not bound to align courts with local authority boundaries.
(6) A number of issues were raised with respect to the wider costs benefit analysis. It was suggested that some of the potential savings which were alleged were exaggerated, for example the need to replace all the windows in the Barry court at a cost of over £0.8m. The response was that it had not been suggested that the windows at Barry would all be replaced immediately, but that there were significant backlog maintenance costs that reflected a future need if Barry remained open. The substantive point made was that if Barry closed, there would be no need to spend any money on maintaining the courthouse there and, of course, there would be an eventual capital profit from the sale of the building.
Another point made by the representations was that cost increases of the move had been under estimated, particularly the costs that would be borne by the Council itself. Following a "rudimentary assessment", the additional annual costs to the Council were estimated at £300,000, although no breakdown of that figure was given. There was evidence of the additional travel time and costs that would be expended by court users travelling to Cardiff from Barry. In the course of these proceedings, the Council have obtained expert accountancy evidence (not available before the decision to close Barry was made) that their additional costs would be about £170,000, and a further £46,000 being borne by central government in respect of additional magistrates' travel costs (although that cost would not be born by the Council). The response to the consultation was that Barry is only 9 miles from Cardiff, and public transport (rail and bus) is good, being relatively quick and cheap. Some of the more heavily populated areas currently served by Barry (e.g. Penarth) are closer to Cardiff. In the Impact Statement, it was accepted that some court users would have increased journey times and costs as a result of the transfer of work; but these costs would be offset to an extent by strategic planning of court activities in fewer centres and the centralisation of CPS and other functions which, for some, would mean the making of shorter and/or fewer journeys to court.
It said that, due to the multi-factoral nature of the cost-benefit calculation, it was not considered possible to "monetise" (i.e. put a precise figure on) the costs and costs savings. The Lord Chancellor maintains that the expert evidence now obtained by the Claimants is insufficiently sensitive to the wide variety of factors that affect net public cost, and, in any event, on any view the additional costs that might be expended by the Council are less than the annual savings expected by the Barry court closure; and hence there will be net public cost saving from the closure of Barry.
(7) A number of consultees, but notably Ms Jane Hutt (the Welsh Assembly Member for the Vale of Glamorgan), said that Barry is a particularly deprived area as marked by its designation by the Assembly as one of seven Strategic Regeneration Areas in Wales, one key theme of which is "reinvigorating the town centre" of Barry. It was suggested that the closure of the court would not assist in these objectives. The response to the consultation (apparently missing the focus of the point made, Mr Roddick QC, counsel for the claimant, submitted) said that travel to court would be infrequent for most, and available and affordable to almost all. The Impact Statement, however, did deal with the point: it was assumed that if a court closed, then the vacated building would be subject to "an equivalent alternative use", and therefore no adverse local economy impact was expected.
(8) It was also suggested that it would be more sensible for Caerphilly Magistrates' Court to close, given that it is marginally closer to Cardiff and is serviced by excellent travel links. The response to that particular suggestion was as follows:
"At this time, magistrates' court services are very much linked to local criminal justice board areas. As Caerphilly is in Gwent, a different RCJB area from Cardiff, we did not consider merging the work from Caerphilly with that from Cardiff, although there may be merit in working across these boundaries in the future.
(9) The paper also rejected a submission to the effect that these were short term savings only and that there was no coherent strategy. It was stated that with the workload in Barry falling over the years, and having regard to the available resources, it was necessary for HMCS to position itself with fewer courts operating more efficiently.
The grounds of challenge.
- The judicial review challenge is brought by the Vale of Glamorgan Council. The original grounds of challenge identified 13 separate grounds, but they have been effectively narrowed and can, we think, be considered under five headings. It is submitted that:
(1) The Lord Chancellor 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.
(2) The Lord Chancellor 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.
(3) A specific aspect of this submission was that 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 has been identified by the Welsh Assembly as one of seven Strategic Regeneration Areas in Wales.
(4) In all the circumstances the decision was perverse in a Wednesbury sense.
(5) The Lord Chancellor gave inadequate reasons for the decision.
- Various witness statements have been put before the court in connection with the litigation. The claimant has put in statements from Councillor Kemp, the Executive Leader of the Vale of Glamorgan Council; Councillor Jarvie, the Deputy Leader of the Council; Ms Kay Quinn, a director of Atal y Fro, who dealt specifically with the issues of domestic abuse; and there were two expert's reports from Sat Plaha, a practising chartered accountant who gave evidence about the anticipated costs to the Council if the court were to close. There were witness statements put in by the Lord Chancellor from three persons, two statements from Mr Stephen Whale, an employee of HMCS who was seconded to lead on the courts' transformation in Wales; one from Mr Lee Howse, the Policy Manager for the Court Estates Reform Programme; and two from Mr Daniel Flury, the Programme Manager for the Court Estate Reform Programme.
- We will consider the various grounds in turn.
Failing to consider or to consult on alternative means of achieving the objectives
- The thrust of this submission was that given that there was no criticism of the Barry Court itself - indeed, it was operating to a very high level of efficiency and there were powerful political and economic reasons to retain it - it was incumbent on the Lord Chancellor to identify possible alternative ways of achieving the relevant efficiency savings and either to consult on those alternatives or to give cogent reasons why he was not doing so. Mr Roddick submitted that it was not for him to suggest what the alternatives might be, although there were two possibilities identified in the witness statement made by Councillor Kemp. The first, which had been identified in the response to the consultation, was the possibility of closing Caerphilly and transferring its work to Cardiff. The second, which had not been identified in the consultations, was to sub-let some of the Cardiff court premises for other uses.
- Mr Roddick relied in this context on two decisions where the court has held that the scope of consultation was too restricted. In R (on the application of Madden) v Bury MBC [2002] EWHC (Admin) 1882 the local authority had consulted over the proposed closure of two care homes. The reasons it had given for closing the homes was that they did not meet the standards of registration. Richards J, as he then was, concluded that with respect to one of the homes the reason given was false, and with respect to the other, it was inadequate, if not misleading. The judge observed that in the context of that case "a proper understanding of the true reasons for the proposed closure would require at the least a comparison with the other home that the council thought it preferable to retain…" He added that there was no indication in the consultation documents that the representations could be made about the possible closure of other homes. In the circumstances, Richards J held that the consultation process was unfair.
- In R (on the application of Medway Council and others) v Secretary of State for Transport [2002] EWHC 2516 Admin the government consulted on the future of air transport, including the possibility of expanding existing airports by building new runways, but it expressly stated that it would not include in the consultation process any options for new runways at Gatwick Airport. There were three challenges to that exclusion. One of the grounds was that at some stage the question of future runways at Gatwick would have to be considered. If that were to happen after Government policy had been formed, it would make it far more difficult in future successfully to overturn that policy whereas if that issue were considered at the stage of forming policy, it would ensure a fair and equal playing field as between competing proposals. Maurice Kay J, as he then was, accepted that submission. The issue of Gatwick would almost certainly emerge at some stage and it was unfair to structure the consultation process in a way which in practice was likely to deprive the claimants of their only realistic chance of arguing in favour of development at Gatwick. The judge thought that once government policy was formed, they would face an insurmountable hurdle in running that submission.
- Mr Roddick submits that the same principle applies here. By focusing on the need to fully utilise the Cardiff court for legal work, and by considering only the Barry court as a potential source of additional work for Cardiff, the outcome of the consultation was effectively predetermined. Given those premises, there was no real possibility that the closure could be avoided. It was unfair to skew the consultation process in this way.
- We do not accept this submission, essentially for the reasons advanced by Mr Grodzinski QC, counsel for the Lord Chancellor. First, there is no general principle that a Minister entering into consultation must consult on all the possible alternative 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. Maurice Kay J recognised this in the Medway case itself, at para 26:
"Other things being equal, it was permissible for him (that is, the Secretary of State) to narrow the range of options within which he would consult and eventually decide.
Consultation is not negotiation. It is a process within which a decision maker at a formative stage in the decision making process invites representations on one or more possible courses of action. In the words of Lord Woolf MR in Ex parte Coughlan [2001] QB 23 at para 112, the decision maker's obligation "is to let those who have potential interest in the subject matter know in clear terms what the proposal is and why exactly it is under positive consideration, telling them enough (which may be a good deal) to enable them to make an intelligent response. The obligation, although it may be quite onerous, goes no further than this."
This passage was approved by the Court of Appeal in R (Forest Heath DC) v Electoral Commission [2010] PTSR 1227 at para 54.
- In our judgment, the Lord Chancellor was entitled to identify the issues for consultation in the way he did. There was no express statutory duty to consult and subject to considerations of fairness, it was for the Lord Chancellor himself to determine the scope of any consultation. In a context where he was rationalising the court estate, he was perfectly entitled to conclude that he would consult only about proposed closures. There was nothing irrational or unfair about that particularly given that this was part of a wider process of national consultation in which urgent steps to save costs were being implemented. Unlike the Madden case, any consultee could make a submission to the effect that alternative means should be considered to achieve the objective, and one at least did, suggesting that Caerphilly would be a better choice of the court to close. However, there was no obligation thereafter for the Lord Chancellor to pick up that proposal and put it out for further consultation. No doubt alternatives could be suggested with respect to most, if not all, of the 110 courts 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. Madden and Medway were exceptional cases. In the former some reference to alternative closures was necessary on the facts in order to provide a proper explanation of the reasons for the proposed closure; in the latter, the consultation exercise gave an unfair advantage to those who wished to resist further development at Gatwick. In our judgment, the circumstances here are not analogous to either of these cases.
- There is a further answer to this submission. So far as the Caerphilly closure is concerned, the Lord Chancellor did address this alternative and he gave a cogent reason why it was not a desirable alternative (see para 16(8) above). It was in a different Local Criminal Justice Board. LCJBs operate on a non-statutory basis. They are coterminous with Police authority areas and are not within the control of HMCS. They provide a framework where criminal justice partners such as the prosecuting authorities, probation services, youth justice agencies and others work together in a particular area. It would create administrative difficulties if magistrates heard cases operating across LCJB boundaries. Contrary to the submission of Mr Roddick, in our view this was a cogent and rational explanation why that option was not considered to be appropriate. It is true that in the consultation response it was envisaged that in future it might be appropriate to consider crossing boundaries, but it was not unreasonable for the Lord Chancellor to take the view that it would not be appropriate in this consultation exercise. There can be no criticism of the Lord Chancellor for failing to consult about an alternative which he has rejected on justifiable grounds.
- As to the submission that Cardiff might be used for other purposes, for example by sub-letting part of the court, this was not proposed by anyone in the consultation exercise. It has emerged as a suggestion in the course of this litigation. Again, in our judgment it is not an obvious solution to the problems. Mr Howse pointed out in his witness statement that there are security considerations in taking that course, and critically, that option would not deal with the fact that Barry is underutilised. The Lord Chancellor was plainly entitled to take the view that this would not rationalise the court estate in a satisfactory way, and therefore he was under no obligation to consult about it.
Failure to have regard to relevant considerations.
- The second principal ground is that in reaching his decision, the Lord Chancellor failed to have regard to relevant considerations. It is said that the Lord Chancellor has been motivated almost solely by what he considers to be the desirability of ensuring maximum utilisation of the court at Cardiff and that this has dictated his approach to the question of merger, effectively at the expense of a wide range of other countervailing considerations. The original grounds of challenge identified a whole series of matters which it was alleged the Lord Chancellor had failed properly to consider. These included the fact that the Barry court was providing high quality service; that the premises were entirely satisfactory; that significant recent expenditure of some £1.9 million would be wasted; that Barry provided a valuable specialist domestic violence court, and Cardiff was inferior in this respect; that there had been no adequate analysis of the economic consequences to the public generally and in fact the transfer of functions would be likely to increase aggregate public spending; and that no attention had been given to the fact that Barry was a deprived area which had been designated as a Strategic Regeneration Area.
- The short answer to this challenge, it seems to us, is that save perhaps for the issue concerning the strategic regeneration area which we consider separately below, these were all matters which were specifically addressed in the 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. Indeed, as Lord Hoffmann pointed out in Tesco Stores Limited v Secretary of State for the Environment [1995] 1 WLR 759,780:
"Provided the planning authority has regard to all material considerations it is at liberty (provided that it does not lapse into Wednesbury irrationality) to give them whatever weight the planning authority thinks fit, or no weight at all."
Accordingly, the submission that too much weight, or inadequate weight, was given to any particular factor is doomed to fail. Indeed, it is not possible to say what weight was given to any of the factors taken individually. The only possible legal basis for challenge is to submit that the weighing exercise was so defective that the Lord Chancellor reached a decision which was Wednesbury unreasonable. That is indeed one of the grounds of challenge, and we address it below.
- We accept that the Lord Chancellor did give very considerable weight to the desirability of maximising the use of the Magistrates' court at Cardiff. He was entitled to do that and to take the view that the other considerations militating against closure were either of little or no weight in comparison, and in any event were insufficient to shift the balance against closure. It is not for the court to carry out the balancing exercise and to substitute its view on the merits for the Lord Chancellor, save where a Wednesbury irrationality challenge can successfully be mounted.
Failure to consider the economic consequences to the public purse including the fact that Barry has been designated a strategic regeneration area.
- This is in substance an aspect of the previous ground but we have dealt with it separately. Much of the material seeking to make good these alleged failings has emerged during the course of the litigation.
- As to the costs aspect, we have set out at para. 17(6) above the way in which the Council has sought to make good its submissions that there will be significant losses to it and to other bodies if the closure goes ahead. The expert's reports it has commissioned to sustain its case have been criticised by the Lord Chancellor who suggests that some of their premises are suspect. In any event, they were produced after the decision had been taken. But his fundamental case, reflected in comments made in the Impact Assessment, is that any precise estimate of costs is simply impossible to make. In our judgment this was a realistic analysis. 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. We do not therefore accept that this is a justified basis for vitiating the closure decision.
- Mr Roddick, in his oral submissions, made more of the fact that the Lord Chancellor had failed to give any weight to the fact that in 1 March 2010 the Welsh Assembly had given Barry the status of a Strategic Regeneration Area. He submits that the withdrawal of the court from the very heart of Barry will inevitably have an adverse effect on a deprived area and will undermine the Assembly's objective. He submits, and we think he is right about this, that in the response to consultations the Lord Chancellor appears to have misunderstood what the consultees were submitting was the significance of Barry being given this status. The concern was that closure of the Court would further damage the economic position of the community, whereas the response seems to have treated the point as though it were merely directed at the additional costs of travel for court users. In addition, the suggestion was that the court has an important civic role in the town for reasons other than its economic significance.
- In our view, the potential economic impact was considered, albeit briefly, in the Impact Assessment where it was pointed out that following closure it was anticipated that the building would be put to a similar use. In other words, the Lord Chancellor's assessment was that there would be no real adverse economic impact following the closure of the court itself. Accordingly, he considered the position and reached a considered view about it. This does not display any error of law.
- As to the submission that no consideration was given to the fact that the Barry court might be an iconic symbol for a depressed area, Mr Whale in his witness statement concedes that no consideration was given to this. But in our view there was no obligation on the Lord Chancellor to have treated it as a material consideration. The legislation is in broad terms, and Parliament has not expressly identified any material considerations which the Lord Chancellor is required to consider when deciding where courts should be situated. It is only where the decision maker is required by law to take a particular consideration into account that any challenge for failure to have regard to a material consideration can succeed. The point was succinctly put by Cooke J in the New Zealand case of CREEDENZ Inc v Governor General [1981] 1 N.Z.L.R.172, 183, in a passage approved in the judgment of Lord Scarman (with whose judgment Lords Diplock, Roskill, Brandon and Brightman agreed) in In re Findlay [1985] A. C. 318, 333:
"What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the authority as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision."
Lord Scarman then approved a later passage in the judgment of Cooke J where he observed that there may be cases where a matter is
"so obviously material to a decision on a particular project that anything short of direct consideration by the ministers .... would not be in accordance with the intention of the Act."
This analysis has been followed more recently by Lord Bingham of Cornhill in R (Corner House Research) v Serious Fraud Office [2008] 3 W.L.R.568 para 40.
- Mr Grodzinski submits that some of the considerations advanced by the applicant, and in particular the fact that Barry is a designated regeneration area, are simply not considerations which the Lord Chancellor is obliged to take into account. The Lord Chancellor was required to consider the economic effects of closure, but he did so. Some Ministers may have chosen to have regard to the wider consequences of closing the court, but it was not a mandatory material consideration. We agree; whether or not it may be politically prudent to have regard to that factor is a matter for the Lord Chancellor; but in our judgment he was under no legal obligation to do so.
The decision was perverse.
- This is inter-related with the previous two grounds. The submission is that even if no challenge can be made to the weight or lack of it given to individual factors, the decision as a whole was Wednesbury irrational. Mr Roddick submits that the Lord Chancellor must have given too much weight to the aspiration to achieve an 81% utilisation rate in Cardiff and to what are speculative costs savings, and must have failed to give sufficient weight to the countervailing factors, and in particular the status of Barry as an SRA. We can deal with this submission briefly. 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. We fully recognise that there were powerful submissions made in support of retaining the Barry court. They may have persuaded some Ministers and indeed they were in many respects similar to representations which were made in 2006 when a proposal to close the court was successfully resisted. However, the reasons for closing Barry 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.
Failed to provide proper reasons.
- This submission was not advanced with any particular enthusiasm, and in our view rightly so. We do not accept a submission from the Lord Chancellor that there was no obligation to give any reasons at all for this decision. It is true that the common law has not yet reached the point where reasons need be given for all administrative decisions: see Hasan v Secretary of State for Trade and Industry [2008] EWCA Civ 1322, para 21 per Sir Anthony May, P. However, where there has been consultation the Minister is under an obligation properly to consider the responses, and in our view he is then obliged to give reasons sufficient to indicate why, notwithstanding submissions to the contrary, he has made the decision he has.
- In South Bucks DC v Porter (No. 2) [2004] 1 WLR 1953 para 36 Lord Brown of Eaton-under–Haywood summarised the law governing the proper approach to the giving of reasons. That was in a planning context but in our view the observations apply with appropriate modifications here. As his Lordship pointed out, the degree of particularity required depends upon the nature of the decision, but it is not necessary to address every material consideration, only the principal issues in dispute. Here the reasons for closing the court are in our view perfectly clear. The Lord Chancellor accepted many of the points being advanced by consultees about the efficiency of the Barry court but he concluded that 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.
Conclusion.
- 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 all these were addressed to the Lord Chancellor. Notwithstanding Mr Roddick's eloquent plea to the contrary, in our judgment 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. This was an important case for the people of Barry, and we give 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.
