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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> London Borough of Hackney & Anor, R (on the application of) v Secretary of State for Housing Communities and Local Government [2019] EWHC 1438 (Admin) (07 June 2019) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2019/1438.html Cite as: [2019] EWHC 1438 (Admin) |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
THE QUEEN on the application of LONDON BOROUGH OF HACKNEY CHRISTINE MOORE |
Claimants |
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- and - |
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SECRETARY OF STATE FOR HOUSING COMMUNITIES AND LOCAL GOVERNMENT |
Defendant |
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And Between |
THE QUEEN on the application of LONDON BOROUGH OF WALTHAM FOREST |
Claimants |
- and - |
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SECRETARY OF STATE FOR HOUSING COMMUNITIES AND LOCAL GOVERNMENT |
Defendant |
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Sir James Eadie QC and Mr David Pievsky (instructed by Government Legal Department) for the Defendant
Hearing dates: 22 and 23 May 2019
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Crown Copyright ©
Mrs Justice Andrews:
INTRODUCTION
"Local authorities should not publish or incur expenditure in commissioning in hardcopy or on any website, newsletters, newssheets or similar communications which seek to emulate commercial newspapers in style or content. Where local authorities do commission or publish newsletters, newssheets or similar communications, they should not issue them more frequently than quarterly, apart from parish councils which should not issue them more frequently than monthly. Such communications should not include material other than information for the public about the business, services and amenities of the council or other local service providers."
The Secretary of State does not suggest that these newssheets fail to comply with the Code in any other respect than the frequency of their publication.
FACTUAL BACKGROUND
"7.1 For a community to be a healthy local democracy, local understanding of the operation of the democratic process is important, and effective communication is key to developing that understanding. Local authority publicity is important to transparency and to localism, as the public need to know what their local authority is doing if they are to hold it to account.7.2 The revised publicity code contains specific guidance on the frequency, content and appearance of local authority newsletters, news sheets or similar publications. The Department considers that the publicity code, rather than competition legislation, is the right vehicle for imposing tougher rules to stop unfair competition by local authority newspapers because the issues involved go beyond the purely economic considerations of, for instance, council newspapers diverting revenue from paid advertising away from local newspapers. The Department's view is that the proliferation of council newspapers can have the effect of reducing the impact of independent local newspapers. A healthy free press is important in providing information to the public to hold their local authority to account. Council newspapers, issued frequently and designed to resemble a local newspaper can mislead members of the public reading them that they are local newspapers covering council events and give communities a biased view of the activities of the council."
"There will be a post implementation review of the Publicity Code in 3 to 5 years after it comes into effect to check that the Code is operating as intended and with the intended effects, which are to address the problem of unfair competition to local newspapers by local authority newsletters. The baselines… will include evidence on the current state of the local newspaper industry… some degree of primary research may be necessary to generate accurate baselines. An assessment will be made through a focused monitoring exercise of the extent to which local newspapers remain subject to unfair competition from local authority newsletters…"
No such review has yet taken place, although more than 5 years have passed since the revised Code came into effect.
"these arguments do not address the simple fact that if revenues are siphoned off from a fragile industry by taxpayer-backed competition this necessarily puts the continuation of that industry at risk, in the case of local newspapers an industry vital to a healthy local democracy."
"may direct one or more specified local authorities in England to comply with a code issued under section 4… A direction may require compliance with –a) one or more specified provisions of a code, orb) all of the provisions of the specified code."
THE CLAIMS FOR JUDICIAL REVIEW
a. Misdirection in law and lack of proportionality;b. Abuse of power;
c. Wednesbury unreasonableness/irrationality and breach of the Tameside duty of inquiry;
d. Breach of the Public Sector Equality Duty
e. State Aid.
However, as Mr Giffin readily accepted, these headings overlapped to some extent, and often constituted different ways of characterising the same essential objections to the way in which the Secretary of State had approached the exercise of his statutory discretion. Because of this, I have identified the key issues between the parties and addressed the various legal bases of challenge in the context of the issues to which they relate.
ISSUE 1 – WHAT IS THE CORRECT LEGAL APPROACH TO THE EXERCISE OF THE DISCRETION UNDER S.4A?
ISSUE 2: WAS THE DECISION TO ENFORCE RATIONAL AND (SO FAR AS APPLICABLE) PROPORTIONATE?
ISSUE 3 -WAS DUE PROCESS FOLLOWED?
"..if a public body indicates a clear and unequivocal policy that will be followed and applied in a particular type of case, then an individual is entitled to expect that policy to be operated, unless and until a reasonable decision is taken that the policy be modified or withdrawn … or implementation interferes with that body's other statutory duties."
"it is … a matter for you to consider whether a Direction, if otherwise appropriate, justified and proportionate, should be made, or whether, as suggested by these authorities, there ought to be a further general review of the Code first."
"The Secretary of State does not agree that it would be an abuse of power to make a direction. The intention to review the Code and the proposed research and analysis was the intention of a previous Government. The legal framework remains as per the legislation which has been made by Parliament and the Secretary of State has power to enforce aspects of the Code where he considers it right and appropriate to do so."
ISSUE 4 - DID THE SECRETARY OF STATE COMPLY WITH HIS DUTY UNDER SECTION 149 OF THE EQUALITY ACT 2010?
a. Remove or minimise disadvantages suffered by persons who share a relevant protected characteristic that are connected to that characteristic;b. Take steps to meet the needs of persons who share a relevant protected characteristic that are different from the needs of persons who do not share it; and
c. Encourage persons who share a relevant protected characteristic to participate in public life or in any other activity in which participation by such persons is disproportionately low.
ISSUE 5 – DID THE DIRECTIONS AMOUNT TO UNLAWFUL STATE AID, CONTRARY TO ARTICLE 107(1) OF THE TFEU?
"Save as otherwise provided in the Treaties any aid granted by a Member state or through State resources in any form whatsoever which distorts or threatens to distort competition by favouring certain undertakings or the production of certain goods shall, in so far as it affects trade between Member States, be incompatible with the internal market."
CONCLUSION