Two parish councils recently succeeded in a legal challenge to their proposed abolition. Chris Brown explains how one of the parishes did it and considers the lessons for public authorities arising from the case.
Wexham Court Parish Council was facing abolition following a governance review. District councils may carry out community governance reviews under the Local Government and Public Involvement in Health Act 2007 and make changes to the parish councils in their area, including creating or abolishing them. Government policy is very much in favour of parish councils. Accordingly, the Secretary of State for Communities and Local Government has issued guidance on the exercise of the powers in the Act and abolition of them is very rare.
Wexham Court Parish Council is in Berkshire within the District of Slough Borough Council. Slough had carried out a community governance review in 2013 and, as part of the statutory requirement to consult, carried out a non-binding advisory poll on the retention or abolition of the Council. In the poll, 45% voted for abolition and 55% for retention. Slough retained the Parish Council.
In 2018 Slough carried out another review and another poll. This time 44% voted for abolition and 56 % for retention. However, Slough had continuing concerns about the administrative and governance arrangements at the Parish Council and, citing these concerns, the Full Council approved a recommendation for abolition of the Parish Council. The abolition order was made on the 15 January 2019. Slough also abolished another Parish Council, Britwell, at the same time.
Wexham Court Parish Council consulted nplaw on the abolition and Cornerstone Barristers were instructed to issue a claim in the High Court which was heard on the 10th April.
In Britwell Parish Council, R (on the application of) v Slough Borough Council  EWHC 998 (Admin) on 17 April, Mr Justice Lewis allowed the claim and quashed the abolition order. The 2007 Act requires district councils to have regard to the Secretary of State’s guidance in exercising their powers. Against a background of very positive support for the role of parish councils in local democracy, the Guidance on Community Governance Reviews (at paragraph 120) does accept that, exceptionally, abolition of parish councils could be justified if there is “clear and sustained local support for such action”. What does clear and sustained mean?
Before answering that question, the Court reminded itself of the following:
- A public authority must act in accordance with guidance or, if not, give clear reasons for departing from it (R (Khatun) v London Borough of Newham  EWCA Civ. 55 at 47).
- To act in accordance with guidance, a public authority must understand it. Although not a statue, guidance is intended have a legal meaning and to guide the decision maker (Tesco Stores Ltd. v Dundee City Council  UKSC 13 at paragraphs 17 and 19).
Slough argued that, as long as there was a significant proportion of the population supporting abolition, it would be wrong to abolish only if the proportion was so low as to make such a decision irrational. The Court held that this was the incorrect approach and that the guidance requires broad support for abolition before abolition is in accordance with guidance.
So, what are the lessons for a public authority? Of course, the reports to Slough Borough Council were replete with quotations from the guidance and officer advice to comply with it. Slough were certainly having regard to the guidance. However, referring to the considerations of the court noted above, if Slough did not understand the guidance, it could not be applying it correctly and the decision that purported to be following the guidance was fatally flawed. Had Slough realised that it was not following the guidance and given rational reasons for not applying it, it is possible that their decision would have been sound. That is the challenge for structured decision-making: it is not enough to try and fit the guidance around the decision; the starting point is the guidance, which must lead the structure and approach in the report to the recommendation.