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Court of Appeal in Northern Ireland Decisions
You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> Lynch v The Boundary Commissioner for Northern Ireland  NICA 32 (04 June 2020)
Cite as:  NICA 32
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Neutral Citation No:  NICA 32
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
"At the final stage of the obligatory statutory process, which was fully observed procedurally, on the grounds set forth in its judgment, the Boundary Commission of Northern Ireland ("the Commission") erred in law procedurally and fettered its discretion in adopting the following approach of the totality of the representations received in the statutory process, in the language of Chapter 4 of its Final Recommendations Report ("the Report"):
'We consider that the final recommendations should be derived from proposals which have been publicly debated as openly and fairly as possible during earlier stages of the consultation process. Given that the consultation is now closed, it would be preferable to avoid radical changes to revised proposals. An exception could be made if there were a strong public consensus in support of a major change and low probability of that change creating other issues of concern, whether in the constituencies affected or further afield. The low probability of that change creating other issues of concern, whether in the constituencies affected or further afield, otherwise, it is preferable for adjustments at this stage to be local and incremental.'"
(a) Error of law/incorrect reliance upon Rule 7.
(b) Failure to give reasons.
(c) Failure to quash the FRR.
In return the Commission has cross-appealed:
(a) The trial judge's conclusion that it had fettered its discretion in its consideration of the consultation responses prior to the preparation of the FRR and that as a consequence the FRR was vitiated by procedural unfairness.
(b) The decision to grant relief to the applicant and to make the declaration contained in the final order dated 14 June 2018.
The appellant has made it clear to the court that his challenge is not to the merits but to the decision-making process and its faithfulness to the statutory scheme under the 1986 Act.
B. IS THE JUDGMENT ACADEMIC?
"The Boundary Commission considers the government's announcement to be a significant development which is likely to result in the current appeal and cross-appeal becoming academic. If legislation in the terms anticipated is enacted, the entire 2018 Boundary Review will be aborted and the Final Recommendations for Northern Ireland would not be implemented. The outcome sought by the Appellant will therefore be achieved by alternative means."
(i) First of all, as we have said, there is no guarantee that any legislation will be passed which would make this appeal academic;
(ii) Regardless of whether there is any legislation passed as anticipated the issues of whether the Commission's approach to the consultation process and to Rules 5 and 7 was correct as a matter of law raise important legal questions which deserve a clear answer;
(iii) This is an area of law in which there is limited jurisprudence and a judgment may be of assistance in the understanding of the correct legal principles to be applied. We agree with the submission that it would be disproportionate and a breach of the overriding objective of Order 1, Rule 1A for the appeal to be dismissed at this point given the investment of so much time and costs, at the public expense, even if legislation is enacted;
(iv) Even if the result is academic, which it is not, this court retains a discretion to hear disputes on public law even where the result is academic: R v Secretary of State for the Home Department ex parte Salem  1 AC 450. It is in the public interest to do so in this case as there are points of statutory construction which it is anticipated are likely to arise again in the future.
C. BACKGROUND INFORMATION
(a) A chairperson,
(b) A deputy chairperson (who must be a judge), and
(c) Two other members appointed by the Secretary of State.
(i) "... to keep under review the representation in the House of Commons of the part of the United Kingdom with which they are concerned"; and
(ii) To submit reports to the Secretary of State, which contain recommendations for the constituencies into which the area should be divided "in order to give effect to the Rules set out in Schedule 2."
(a) The proposed constituencies into which their respective area will be divided;
(b) The name by which each constituency shall be called; and
(c) Whether it should be a county or borough constituency.
D. STATUTORY FRAMEWORK
" The statutory framework within which the Commission was at all material times operating is contained in The Parliamentary Constituencies Act 1986 (the "1986 Act"). This has the following salient provisions.
'(1) For the purpose of the continuous review of the distribution of seats at parliamentary elections, there shall continue to be four permanent Boundary Commissions, namely a Boundary Commission for England, a Boundary Commission for Scotland, a Boundary Commission for Wales and a Boundary Commission for Northern Ireland.
(2) Schedule 1 to this Act shall have effect with respect to the constitution of, and other matters relating to, the Boundary Commissions.
(5) As soon as may be after the submission of a report under subsection (1) above, the Secretary of State shall lay the report before Parliament.
(5A) As soon as may be after the submission of all four reports under subsection (1) above that are required by subsection (2) above to be submitted before a particular date, the Secretary of State shall lay before Parliament the draft of an Order in Council for giving effect to the recommendations contained in them.'
'(1) Each Boundary Commission shall keep under review the representation in the House of Commons of the part of the United Kingdom with which they are concerned and shall, in accordance with subsection (2) below, submit to the [Secretary of State/ Minister for the Cabinet Office] reports with respect to the whole of that part of the United Kingdom, either—
(a) showing the constituencies into which they recommend that it should be divided in order to give effect to the rules set out in Schedule 2 to this Act (read with paragraph 7 of that Schedule), or
(b) stating that, in the opinion of the Commission, no alteration is required to be made in respect of that part of the United Kingdom in order to give effect to the said rules.
(2) A Boundary Commission shall submit reports under subsection (1) above periodically—
(a) before 1st October 2018 but not before 1st September 2018, and
(b) before 1st October of every fifth year after that.
(1) The draft of any Order in Council laid before Parliament by the [Secretary of State/Lord President of the Council] under this Act for giving effect, whether with or without modifications, to the recommendations contained in the report of a Boundary Commission may make provision for any matters which appear to him to be incidental to, or consequential on, the recommendations.
(2) Where any such draft gives effect to any such recommendations with modifications, the [Secretary of State/Lord President of the Council] shall lay before Parliament together with the draft the statement submitted under section 3(5B)(c) above of the reasons for the modifications.
(3) If any such draft is approved by resolution of each House of Parliament, the [Secretary of State/Lord President of the Council] shall submit it to Her Majesty in Council.
(4) If a motion for the approval of any such draft is rejected by either House of Parliament or withdrawn by leave of the House, the [Secretary of State/Lord President of the Council] may amend the draft and lay the amended draft before Parliament, and if the draft as so amended is approved by resolution of each House of Parliament, the [Secretary of State/Lord President of the Council] shall submit it to Her Majesty in Council.
(5) Where the draft of an Order in Council is submitted to Her Majesty in Council under this Act, Her Majesty in Council may make an Order in terms of the draft which (subject to subsection (6) below) shall come into force on such date as may be specified in the Order and shall have effect notwithstanding anything in any enactment.'
 The subject of "Publicity and Consultation" is regulated by Section 5:
'Once a Boundary Commission have decided what constituencies they propose to recommend in a report under section 3(1)(a) above—
(a) the Commission shall take such steps as they think fit to inform people in each of the proposed constituencies—
(i) what the proposals are,
(ii) that a copy of the proposals is open to inspection at a specified place within the proposed constituency, and
(iii) that written representations with respect to the proposals may be made to the Commission during a specified period of 12 weeks ("the initial consultation period");
(b) the Commission shall cause public hearings to be held during the period beginning with the fifth week of the initial consultation period and ending with the tenth week of it.
(2) Subsection (1)(a)(ii) above does not apply to a constituency with respect to which no alteration is proposed.
(3) Schedule 2A to this Act, which makes further provision about public hearings under subsection (1)(b) above, has effect.
(4) After the end of the initial consultation period the Commission—
(a) shall publish, in such manner as they think fit, representations made as mentioned in subsection (1)(a) above and records of public hearings held under subsection (1)(b) above;
(b) shall take such steps as they think fit to inform people in the proposed constituencies that further written representations with respect to the things published under paragraph (a) above may be made to the Commission during a specified period of four weeks ("the secondary consultation period").
(5) If after the end of the secondary consultation period the Commission are minded to revise their original proposals so as to recommend different constituencies, they shall take such steps as they see fit to inform people in each of those revised proposed constituencies—
(a) what the revised proposals are,
(b) that a copy of the revised proposals is open to inspection at a specified place within the revised proposed constituency, and
(c) that written representations with respect to the revised proposals may be made to the Commission during a specified period of eight weeks.
(6) Subsection (5) above does not apply to any proposals to make further revisions.
(7) Steps taken under subsection (4) or (5) above need not be of the same kind as those taken under subsection (1) above.
(8) A Boundary Commission shall take into consideration—
(a) written representations duly made to them as mentioned in subsection (1)(a), (4)(b) or (5)(c) above, and
(b) representations made at public hearings under subsection (1)(b) above.
(9) Except as provided by this section and Schedule 2A to this Act, a Boundary Commission shall not cause any public hearing or inquiry to be held for the purposes of a report under this Act.
(10) Where a Boundary Commission publish—
(a) general information about how they propose to carry out their functions (including, in the case of the Boundary Commission for England, information about the extent (if any) to which they propose to take into account the boundaries mentioned in rule 5(2) of Schedule 2 to this Act), or
(b) anything else to which subsection (1), (4) or (5) above does not apply,
it is for the Commission to determine whether to invite representations and, if they decide to do so, the procedure that is to apply.'
 The subject matter of Schedule 2 to the 1986 Act is "Rules For Distribution For Seats". This contains the following material provisions:
'The number of constituencies in the United Kingdom shall be 600.'
'(1) The electorate of any constituency shall be—
(a) no less than 95% of the United Kingdom electoral quota, and
(b) no more than 105% of that quota.
(2) This rule is subject to rules 4(2), 6(3) and 7.
(3) In this Schedule the "United Kingdom electoral quota" means—U ÷ 596 where U is the electorate of the United Kingdom minus the electorate of the constituencies mentioned in rule 6.'
'(1) Each constituency shall be wholly in one of the four parts of the United Kingdom (England, Wales, Scotland and Northern Ireland).
(2) The number of constituencies in each part of the United Kingdom shall be determined in accordance with the allocation method set out in rule 8.'
'(1) A constituency shall not have an area of more than 13,000 square kilometres.
(2) A constituency does not have to comply with rule 2(1)(a) if—
(a) it has an area of more than 12,000 square kilometres, and
(b) the Boundary Commission concerned are satisfied that it is not reasonably possible for the constituency to comply with that rule.'
 Rules 5 and 7 occupy centre stage in these proceedings.
'(1) A Boundary Commission may take into account, if and to such extent as they think fit—
(a) special geographical considerations, including in particular the size, shape and accessibility of a constituency;
(b) local government boundaries as they exist on the most recent ordinary council-election day before the review date;
(c) boundaries of existing constituencies;
(d) any local ties that would be broken by changes in constituencies;
(e) the inconveniences attendant on such changes.
(3) This rule has effect subject to rules 2 and 4.'
 Rule 7
'(1) In relation to Northern Ireland, sub-paragraph (2) below applies in place of rule 2 where—
(a) the difference between—
(i) the electorate of Northern Ireland, and
(ii) the United Kingdom electoral quota multiplied by the number of seats in Northern Ireland (determined under rule 8),
exceeds one third of the United Kingdom electoral quota, and
(b) the Boundary Commission for Northern Ireland consider that having to apply rule 2 would unreasonably impair—
(i) their ability to take into account the factors set out in rule 5(1), or
(ii) their ability to comply with section 3(2) of this Act.
(2) The electorate of any constituency shall be—
(a) no less than whichever is the lesser of—
N - A
and 95% of the United Kingdom electoral quota, and
(b) no more than whichever is the greater of—
N + A
and 105% of the United Kingdom electoral quota, where—
N is the electorate of Northern Ireland divided by the number of seats in Northern Ireland (determined under rule 8), and
A is 5% of the United Kingdom electoral quota.'
E. THE STATUTORY SCHEME AND HOW IT IS INTENDED TO OPERATE
(i) Any Commission established by the 1986 Act is a public authority "of presumptive specialised expertise": see Harper v Secretary of State for the Home Department  1 All ER 331 at 338A-C.
(ii) We agree with the judge when he said: "The standard of review engaged should be that of upper level irrationality and the threshold for judicial intervention should be a high one."
(iii) A central plank of the scheme set up under the Act is Rule 2. It provides a maximum minimum limit for the electorate of any constituency by references to percentages of the UK electoral quota. This is to ensure as the appellant submitted "fairness and consistency between constituencies in terms of the size of the electorate. The parity principle as it is known is a governing principle which grounds the statutory scheme for the redistribution of seats". As Mr Scoffield observed: "It is in classical mandatory terms."
(iv) The preamble to the 2011 Act comments in respect of Rule 2 as follows:
"It requires the Boundary Commission to recommend constituency boundaries that ensure that the electorate of each constituency is no more than 5% more or less than the electoral quota for the UK. Factors are set out which the Commission may have regard to when recommending constituency boundaries, subject to the parity principle". (Emphasis added)
(v) The parity principle applies and can only be relaxed to permit the operation of Rule 7 of the Rules when pursuant to Rule 7(1) particular mathematic formula as to the electorate applies (and there is no dispute that it applies here) and the Boundary Commission for Northern Ireland .. considers that having to apply Rule 2 would unreasonably impair (a) an ability to take into account the factors set out in Rule 5(1) or (b) their ability to comply with Section 3(2) of "the 1986 Act (which sets out the limits for publication of the Commission's report").
(vi) The Commission may under Rule 5(1) take into account, if and to such extent as it thinks fit, a number of different factors. They are:
(a) special geographical considerations including in particular the size, shape and accessibility of a constituency;
(b) local government boundaries as they exist on the most recent ordinary council-election day before the review date;
(c) boundaries of existing constituencies;
(d) any local ties that would be broken by changes in constituencies;
(e) the inconveniences attendant on such changes.
It goes on to provide that in accordance with Rule 5 the application of (e) is excluded, in respect of a report due to be submitted before October 2018. It is agreed that the present report falls into this category.
It is important to note that Rule 5 is framed so as to give the Commission a very broad discretion. It sets out factors some or all or none of which the Commission may at its discretion decide to take into account. It does not require the Commission to take these factors into account nor does it restrict the Commission to only taking these factors into account, if it considers other factors to be relevant to the exercise of its powers.
(vii) Rule 7 only applies to Northern Ireland. Further it can only be resorted to by the Commission when it considers that having to apply Rule 2 would unreasonably impair the Commission's ability to "take into account the factors set out in Rule 5(1) …."
(viii) The 1986 Act does not define what "unreasonably impairs" means. Its meaning has to be divined from its statutory context. The appellant suggests that it arises when the Commission forms a judgment that it wishes to give more weight to some or all of the Rule 5 factors than the restrictions on electoral size will permit. We consider that the Commission is unreasonably impaired when it is prevented contrary to good sense from giving weight to any or all of the Rule 5(1) factors by restrictions on electoral size required by Rule 2: as provided for in Rule 7(1).
(i) Firstly, the Commission publishes its proposals for the Northern Ireland constituencies, the Preliminary Proposals Report ("PPR") for initial consultation during a 12 week period: see Section 5(1)(a) of the 1986 Act;
(ii) Secondly, there are public meetings during a period of 5-10 weeks held during the period beginning with the fifth week of the initial consultation period and ending with the tenth week of it: see Section 5(1)(b) and Schedule 2A;
(iii) Thirdly, there is publication of consultation responses and records of the public meetings with the opportunity to make written representations to the Commission during a specified period of 4 weeks, which is the second consultation period: see Section 5(4)(b);
(iv) Fourthly, at the end of the secondary consultation period if the Commission is minded to revise its original proposals it will publish its Revised Proposals Report ("RPR"). Written representations may be in respect of the Revised Proposals during a specified period of 8 weeks: see Section 5(5)(c). This phase is unnecessary if no changes are made to the original proposals;
(v) Fifthly, the Commission is bound to take into consideration written representations made to them during the consultation process and also representations made at public hearings: see Section 5(8);
(vi) The consultation process concludes with the publication of the FRR;
(vii) Finally, the only public hearings take place between the fifth week and the tenth week of the initial consultation period
(i) Initial proposals.
(ii) Revised proposals.
(iii) Final recommendations.
There are public consultations which take place in a prescribed manner during the first 2 processes only. The process of public consultation is highly regulated.
(a) The PPR published in September 2016;
(b) The RPR published in January 2018; and
(c) The FRR published in September 2018.
(i) Error of law/incorrect reliance on Rule 7
"Rule 7 would allow constituencies to be defined as low as 69,401 if the Commission was satisfied that the application of the UK quota range would unreasonably impair its ability to take into account the discretionary factors set out in Rule 5. The Commission tested a diverse range of options for a 17 seat regional structure and concluded that the limited flexibility afforded by Rule 7 would not produce a significantly better outcome. Since it was not in a position to advance a credible argument its ability to take the discretionary factors into account had been unreasonably impaired, the Commission concluded that Rule 7 should not be applied."
"The second condition states that Rule 7 may be applied if the Commission considers that the application of Rule 2 would unreasonably impair their ability to take into account the (discretionary) factors set out in Rule 5(1) or their ability to submit their recommendations on time."
Again, the FRR states at 5.9:
"We took the view that we should test public opinion before we could justifiably conclude, as required by the legislation, that our ability to take account of the Rule 5 discretionary factors had been unreasonably impaired."
Further, 7.1 of the FRR recorded:
"We used Rule 7 to avoid unreasonably impairing our ability to take the discretionary factors into account."
So there can be no doubt that the Commission were alive fully to Rule 7 and how it should operate as a gateway condition.
"The strength and depth of submissions received during the consultations has persuaded us that the conditions for engaging Rule 7 have been met."
But the submissions, whether strong and/or deep, are irrelevant unless they demonstrate that the application of Rule 2 would unreasonably impair the ability of the Commission to take into account the discretionary factors set out in Rule 5. Nowhere in the FRR or the RPR or the PPR does the Commission set out any basis for concluding Rule 2 affects, never mind "unreasonably impairs" the Commission's ability to take into account the factors set out in Rule 5. It would appear that having set out the requirements of Rule 7 correctly, the Commission then appears to overlook this fundamental requirement namely that Rule 2 has to unreasonably impair the Commission in taking into account the Rule 5 factors.
"We are constrained to the extent that we can take discretionary factors into consideration because of the overriding requirement to fit within the quota - range. The legislation does not prioritise any of the discretionary factors."
"Our subsequent modelling exercises demonstrated that the additional flexibility permitted by Rule 7 allowed for significantly greater alignment with the discretionary factors both in individual constituencies and across Northern Ireland."
The FRR then goes on to state 7.7:
"Taking all the responses into account, I remain of the view that the Revised Proposals were substantially more compliant with our statutory framework than the Provisional Proposals."
"In addition, the Commission has already determined that the Revised Proposals are better aligned to the statutory criteria than the Provisional Proposals."
"… the focus should be on making only those adjustments to the Revised Proposals which clearly meet the statutory criteria."
"All tools available under the legislation should be used, including the use of Rule 7, in order to ensure that all potential options which are compliant with the statutory criteria are considered."
ii. Failure to give reasons
"It remains difficult to state precisely the standard of reasoning the court will demand ... Much depends upon the particular circumstances and the statutory context in which the duty to give reasons arises. … In short the reasons must show that the decision-maker successfully came to grips with the main contentions advanced by the parties and must tell the parties in broad terms why they lost, or, as the case may be, won'."
"The advantages of the provision of reasons have been often rehearsed. They relate to the decision-making process, in strengthening that process itself, in increasing public confidence in it, and in desirability of the disclosure of error where error exists. They relate also to the parties immediately affected by the decision, in enabling them to have the strength and weaknesses of their respective cases, and to facilitate appeals where that course is appropriate."
"First, and most obviously, reasons explain the decision to interested persons and the general public. Reasons enable interested parties to appeal against or challenge the decision, where this avenue is available. Secondly, the obligation to give reasons may also be an integral part of the decision-making process, intended to concentrate the minds of the decision-makers and ensure that they take into account in a disciplined manner all issues relevant to their decision. There are therefore both normative and instrumental bases for reason-giving. Taken together, these purposes contribute to individual and public confidence in the decision-making process."
In R (Asha) Foundation v Millennium Commission  EWCA Civ 88 Lord Woolf said at paragraph :
"If the Commission were to be required to do what Mr Gordon submits was their obligation here, the Commission would have had to set out in detail each commissioner's views in relation to each of the applications and to provide the background material to Asha so that they could assess whether those conclusions were appropriate. This would be an undue burden upon any commission. It would make their task almost impossible. It certainly would be in my judgment impracticable as a matter of good administration."
Thus, where the decision to be made is a pure exercise of judgment, as here, rather than a judicial decision, less detail justifying the decision is required.
(a) The target audience of the RPR was the general public. There was a much greater response to this report than to the PPR. It is thus clear that the public, including the appellant, knew what was being proposed and felt able to comment upon those proposals and the reasons offered for them by the Commission;
(b) The target audience for the FRR is Parliament, the decision-maker. It is best placed to decide if the proposals are logically compelling. It is Parliament who decides whether to enact the FRR as an Order in Council. In this process the Commission is not the decision-maker and the 1986 Act imposes no statutory obligation on the Commission to provide reasons.
iii. Fettering discretion and procedural unfairness
"While certain other factors may be taken into account by the Commission, they are subordinate to the electoral parity requirement."
"The Commission tested a diverse range of options for a 17 seat regional structure and concluded that the limited flexibility afforded by Rule 7 would not produce a significantly better outcome. Since it was not in a position to advance a credible argument that its ability to take the discretionary factors into account had been unreasonably impaired, the Commission concluded that Rule 7 should not be applied."
"Out of necessity the proposals require substantial changes to the existing constituency structure. The Commission has tried to minimise those changes".
This left all of the constituencies within the UK electoral quota of 71,051-78,507 electors.
It stated at 2.9 of the RPR:
"The strength and depth of submissions received during the consultation has persuaded us that the conditions for engaging Rule 7 have been met."
The Commission significantly "reduced the changes required to existing constituencies". Fermanagh and South Tyrone was returned to its current boundaries, except for the slight adjustments to be required to accommodate the new ward boundaries. The Commission significantly improved the retention of hinterlands around key road towns such as Newry and Coleraine. It also, most importantly, reversed the PPR to include a 4 seat Belfast instead of a 3 seat one.
(a) Any conclusion reached is infused by public involvement in the decision-making process.
(b) Consequently there is public confidence for the conclusions which are reached.
(c) The limited ability of Parliament to change the recommendations of the Commission not having the depth of knowledge or understanding of the Commission.
(d) The significance of setting Parliamentary boundaries and the effect this could have in terms of national Government;
"To be proper, consultation must be undertaken at a time when proposals are still at a formative stage; it must include sufficient reasons for particular proposals to allow those consulting to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of the consultation must be conscientiously taken into account when the ultimate decision is taken."
"… the courts are using the general principles of fairness to ensure that the consulted party is able properly to address the concerns of the decision-maker. Although consultation must take place at the formative stage, it does not require a consultation on every possible option and while a decision-maker is entitled to narrow the options prior to consultation, provided the proposed course can still be altered as a result of the consultation, there may be a necessity to deal with alternative options where it would be unfair not to do so … Proper consultation requires the candid disclosure of the reasons for what is proposed and that consulted parties are aware of the criteria to be adopted and any factors considered to be decisive or of substantial importance." (Emphasis added)
"If the consultation is to be genuine, there must be a real willingness to alter or even reject the proposals in the light of the consultation. The decision following consultation must extend beyond the mere repetition of assertion."
It is against such a background that we must look at what actually happened during the consultation process.
"We consider that the Final Recommendation should be derived from proposals which had been publicly debated as openly and fairly as possible during earlier stages of the consultation process. Given that the consultation is now closed, it would be preferable at this stage to avoid radical changes to our revised proposals. An exception can be made if there were a strong public consensus in favour of a major change and low probability of that change creating other issues of concern, whether in the constituencies affected or further afield. Otherwise, it is preferable for adjustments at this stage to be local and incremental."
Nowhere is an explanation provided by the Commission as to why it would be preferable to avoid radical changes except:
(a) Where there was a strong public consensus in support of a major change; and/or
(b) A low probability of major change creating other issues of concern;
(c) Why it was preferable for adjustments at this stage to be local and incremental?
iv. Failure to give an adequate remedy
"As in all cases where a court finds that a decision is unlawful, where such unlawfulness arises as a result of a breach of a duty to consult, the court has a discretion as to what remedy, if any, to grant. However, a failure to consult at all in a case where there was a duty to consult is normally viewed as a serious matter, and the court will normally quash the resultant decision. The court will be more likely to exercise its discretion not to quash a decision where the unlawfulness rose out of inadequacies in a consultation exercise that was carried out, particularly if the inadequacy is one that is capable of being remedied within the consultation process itself. However, even in this context, the courts are likely to be reluctant to allow the resulting decision to stand."
(a) We grant the appeals on the following grounds:
(i) The Commission failed to give adequate reasons for its decision in relation to unreasonable impairment.
(ii) The Commission failed to act lawfully in relying upon Rule 7.
(iii) The FRR should have been quashed and sent back to the Commission for reconsideration in the light of (i)-(ii) above and .
(a) The engagement and use of Rule 7; and
(b) The written consultation responses to the RPR.