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You are here: BAILII >> Databases >> High Court of Justice in Northern Ireland Queen's Bench Division Decisions >> Boundary Commission For Northern Ireland, Re Judicial Review [2019] NIQB 74 (28 May 2019) URL: http://www.bailii.org/nie/cases/NIHC/QB/2019/74.html Cite as: [2019] NIQB 74 |
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Ref: McC10965
Neutral Citation No: [2019] NIQB 74
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Delivered: 28/5/2019
No: 2018/117698/01
McCLOSKEY J
Introduction
Statutory Matrix
Section 2
"(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."
Section 3
"(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.
Section 4
(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."
"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."
Rule 1
"The number of constituencies in the United Kingdom shall be 600."
Rule 2
"(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."
Rule 3
"(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."
Rule 4
"(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."
[5] Rules 5 and 7 occupy centre stage in these proceedings.
Rule 5
"(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.
(2) (England)
(3) This rule has effect subject to rules 2 and 4."
"(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."
The Statutory Provisions Analysed
"My reading of these rules and of the whole Act is that it was quite clearly intended that, insofar as the matter is not within the discretion of the Commission, it was certainly to be a matter for Parliament to determine. I find it impossible to suppose that Parliament contemplated that on any of these occasions when reports were presented it would be competent for the court to determine and pronounce on a very particular line which had commended itself to the Commission was one which the court thought the best line or the right line – one thing rather than another to be regarded as practicable, and so forth. If it were competent for the courts to pass judgments of that kind on the reports, I am at a loss to see where the process would end and what the function of Parliament would then turn out to be."
I accept the submission of Mr Tony McGleenan QC (with Mr Paul McLaughlin, of counsel), on behalf of the Commission, that this passage contains a strong adjuration against merits review by the court. Applying a modern public law framework, the standard of review engaged would be that of "upper level" irrationality and the threshold for judicial intervention would be a high one.
"…. All that need be said is that it is common ground that in some circumstances it would be wholly proper for the courts to consider whether the Commission have, no doubt inadvertently, misconstrued the instructions which they have been given by Parliament and, if they had done so, to take such action as may be appropriate in order to ensure that the will of Parliament of done."
(At 465g.)
In a later passage, at page 474g, the Master of the Rolls returns to this theme:
"A long line of cases has established that if public authorities purport to make decisions which are not in accordance with the terms of the powers conferred on them, such decisions can be attacked in the courts by way of an application for judicial review; and, furthermore, that even if such decisions on the face of them fall within the letter of their powers, they may be successfully attacked if shown to have been unreasonable."
It suffices to add that, in principle, the report of a Boundary Commission under the 1986 Act is vulnerable to challenge on the orthodox grounds of the disregard of a material fact or factor, the intrusion of something alien or immaterial, procedural fairness, error of law, bias, improper purpose and irrationality. A challenge by judicial review invoking any of these grounds will have to be calibrated by reference to the particular statutory context and the starting point noted above namely the Commission's presumptive expertise.
"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 consulted to give intelligent consideration and an intelligent response; adequate time must be given for this purpose; and the product of consultation must be conscientiously taken into account when the ultimate decision is taken."
In De Smith's Judicial Review (7th Edition) one finds the observation at paragraph 7-054:
"Essentially, in developing standards of consultation, and applying those standards to particular statutory contexts, 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."
(i) The common law principles identified in [13] above apply to every stage of the Commission's activities, from the publication of its initial proposals to the publication of its final proposals.
(ii) There is no hierarchy of consultation responses: all must be considered fairly, conscientiously and with an open mind.
(iii) The legislature has entrusted the Commission with a wide margin of appreciation.
(iv) The Commission may have recourse to Rule 7 only where it has opted to take into account any or all of the factors specified in Rule 5.
(v) The Commission is empowered to have resort to Rule 7 at any stage of the various phases identified above.
(vi) Electorally, in the broader United Kingdom panorama, Northern Ireland is a special case.
The Commission's Reports
(a) Its "Provisional Proposals Report" (the "PPR") was published in September 2016.
(b) Its "Revised Proposals Report" ("RPR") was published in January 2018.
(c) Its "Final Recommendations Report" ("FRR") was published in September 2018.
The target of the Applicant's challenge is the FRR.
The PPR
"The reduction of one seat allocated to Northern Ireland as a result of the formula means that this review will have an impact across all existing constituencies."
"The statutory reduction in the number of constituencies, combined with the imposition of the tighter quota range, means that this review will require more radical changes in existing boundaries than its predecessor, the 2008 Review. Subject to the requirements of the legislation, the Commission has sought to minimise these changes."
The key passage in the PPR (for present purposes) is the following:
"Rule 7 would allow constituencies to be defined as low as 69401 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 that its ability to take the discretion factors into account had been unreasonably impaired the Commission concluded that Rule 7 should not be applied."
In practical and arithmetical terms, the invocation of Rule 7 would permit the reduction of individual constituencies in Northern Ireland from 71,031 electors to 69,401. I would add that I consider this passage to be harmonious with the Commission's meeting (in June 2016) which preceded it. I further interpose the observation that this passage forms the centrepiece of the Applicant's challenge on the first main ground of challenge (supra).
Post - PPR
"The secretariat has undertaken numerous modelling exercises to accommodate the major issues raised in the two consultations. These have included the use of Rule 7 in some but not in others. Those that use Rule 7 have allowed better constituencies to be created especially around the Newtownabbey/Glengormley area and generally across the whole of Northern Ireland …............... [Conclusion] …… If the Commission is satisfied that the Provisional Proposals have to be amended to reflect the major issues identified through the consultations and that their ability to take those issues into consideration is unreasonably impaired without engaging Rule 7, then Rule 7 should be used."
"In Northern Ireland only, 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. During the development of its initial proposals, it was not in a position to advance a credible argument that its ability to take the discretionary factors into account has been unreasonably impaired. Therefore the Commission concluded that Rule 7 should not be applied."
In the associated "Secretariat Plan for Proposal" paper, it was stated:
"The proposal includes four Belfast constituencies that extend beyond the 2008 boundaries in order to satisfy the new criteria and engages Rule 7 for a number of constituencies."
The secretariat also prepared for the Commission's consideration an alternative Belfast constituency model, consisting of three constituencies, which would also engage Rule 7. The former proposal was endorsed by the Commission at its meeting on 10 November 2017.
The RPR
"We decided not to use Rule 7 in developing our provisional proposals. We took the view that, under the second condition, we were required to test a range of possible constituency arrangements before we could justifiably conclude that our ability to take account of the discretionary factors had been unreasonably impaired. The strength and depth of submissions received during the consultations has persuaded us that the conditions for engaging Rule 7 have been met."
In the section relating to Belfast the following passages are of particular note:
"In preparing our provisional proposals we tested both 3-seat and 4-seat options for Belfast. At the time we took the view that the most compliant of our 3-seat options produced the best overall arrangement for Northern Ireland …
We were greatly helped in developing these revised proposals by the quality of submissions advanced in favour of a 4-seat Belfast. Respondents provided a strong rationale supported by a rich store of detail on local ties …. In response to the submissions received we have undertaken extensive further work. We have thoroughly tested the alternative composite proposals and, taking them into account, drew up two new patterns of our own for the region, one with a 4-seat Belfast and the other with a 3-seat Belfast. We concluded that either of these proposals would have been more compliant with the statutory criteria than the provisional proposals or the best of the alternatives that we received. We concluded that our preferred 4-Belfast model would respect existing boundaries more comprehensively not only in the Belfast area but also across Northern Ireland. It would result in 10 constituencies having only minor changes (that is, affecting 5 wards or fewer: under our most compliant 3-seat Belfast model, only eight constituencies would have satisfied this test. The 4-seat model also produced a lower level of disruption amongst voters across the region as measured by the 'unmoved electors' metric ……"
"The Commissioners considered that across the entire NI region, this proposal represented the best means of achieving the statutory electoral constituency quotas, while also taking account of the statutory factors contained in Rule 5. The Commissioners considered that in light of the strength and merits of the consultation responses, the application of Rule 2 would unreasonably impair their ability to take the statutory factors into account. They therefore decided to rely upon Rule 7 so as to make revised proposals which gave rise to fewer changes to existing constituency boundaries across the region and better reflected the existence of local ties than was the case under the provisional proposals."
The Commission's deponent explains that the RPR generated a considerably higher number of responses than was stimulated by the PPR. The secretariat went to work once again, preparing summaries and analyses for consideration by the Commissioners. As appears from the "Summary Of Consultation Responses" paper, the main Unionist parties favoured a four constituency Belfast model engaging Rule 7, while the main Nationalist party, Sinn Féin, proposed a three constituency Belfast model without applying Rule 7.
"…. The Commission has already determined that the revised proposals are better aligned to the statutory criteria than the provisional proposals."
This was followed by "an extensive remodelling exercise to produce viable options for consideration." During the period falling between the April and May 2018 meetings of the Commission, the secretariat prepared a paper entitled "Final Recommendations – Revised Map Options". This reflected the developing view of the Commission, which was to espouse a final proposal entailing "minimal change only": the Dungiven ward would move into west Tyrone, while the Mallusk ward would move into south Antrim, two changes for which there was "clear support" in the consultation responses. The paper continues:
"Any further changes falling from the consultation responses would require more extensive reworking of the revised proposals. This would therefore infringe on the position put forward by Members that more significant changes should be avoided when no further public consultation will take place."
This was formulated as "Option 1". This paper also formulated five other options.
"Members agreed that the focus should be on making only those adjustments to the revised proposals which clearly meet the statutory criteria …..
Members agreed the two key issues that could be addressed without wider ripple effects to reduce the split effect on Dungiven and to move Mallusk from Belfast north to south Antrim. The rationale for this approach would be drafted by [two named Commissioners]. A draft would be provided to the secretariat for insertion in the draft Final Recommendations Report."
The contemplated text was duly prepared by one of the Commissioners. As to this the Commission's deponent avers:
"I believe that the note sheds light upon the approach adopted by Commissioners and is also reflected in the Final Recommendations Report."
The Commissioner author describes the text as "the broad principles which Commissioners have established to frame the decision-making" which would be incorporated as a "rationale" into the final report.
"The Commission has considered consultation responses to inform it of, among other things, local ties and community concerns. However, it is not merely the consultation responses which frame the Commission's deliberations. The Commission can only accommodate submissions which are legally relevant, feasible within the tight parameters of the statutory framework and which be seen to have been publicly debated as openly and as fairly as possible under the [prescribed] process of a statutory consultation. The Commission has adhered to the following guiding principles at this stage of the process:
(1) Splitting of wards to achieve the overall model for Northern Ireland should be avoided unless in exceptional circumstances overwhelming evidence suggests that it is absolutely necessary …… Local government wards are the required 'building blocks' of the process …. the integrity of the wards should be preserved as much as possible and use of whole wards is preferred by the Commission ……
(2) 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 ……
(3) In accordance with the statutory criteria under Rule 5, the Commission has taken into account of [sic]:
(a) Special geographical considerations.
(b) Local government boundaries.
(c) Boundaries of existing constituencies.
(d) Local ties.
(e) Inconvenience …….
The Commission believes that closer alignment to existing Parliamentary boundary lines is preferred to more significant shifts from existing boundary lines, both in Belfast and across Northern Ireland …….
The Commission believes that more limited change to existing boundary lines is its preferred guiding principle and the Commission has considered the criterion under Rule 5(1)(c) to an extent which it sees fit ……
(4) Given that the public consultation to respond to any changes at final proposal stage is now effectively closed, the Commission believes that the considerations at this stage should more properly be matters of 'fine tuning' rather than introducing matters of significant change from the revised proposals. That said, the Commission has not closed its mind to the idea that the secondary consultation could produce evidence of an entirely different and potentially more compliant model than that contained in its revised proposals. However, in light of the limited opportunity for the public to reply to the final proposals, the Commission believes that any significant changes to the revised proposals plan could only be justified by legally relevant evidence of an overwhelming degree."
At the next succeeding meeting of the Commission it was noted that the "composite draft" of the forthcoming final report incorporated this "draft rationale". There followed a meeting with the Assessors at which the draft final report was debated and, in substance, approved.
The FRR
"Ultimately it is the Commission's responsibility, informed by the consultation responses, to formulate final recommendations which are as fully compliant with the statutory criteria as possible."
Addressing Rule 7, the report repeats the terminology of its two predecessors, continuing:
"The strength and depth of submissions received during the consultations on our provisional proposals persuaded us that this condition had been met. This meant that in preparing our revised proposals we were able to design constituencies down to a lower limit of 69401 rather than 71031. By applying this flexibility across Northern Ireland, we were able to produce more compliant patterns."
This is followed by a separate passage under the rubric "Final Recommendations":
"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 at this stage to avoid radical changes to our revised proposals. An exception could be made if there were a strong public consensus in support of a major change and a 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."
[At paragraph 5.11]
"A majority of those who produced composite plans asked us to deploy Rule 7 and use it in their own plans. It was argued that this would help to fulfil the purpose of Rule 5 and that not to use it would unreasonably impair our ability to take the discretionary factors into account ….
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."
At paragraphs 7.4/5/7 the report states:
"The Commission has considered consultation responses to inform it of, among other things, local ties and community concerns. However, it is not merely the consultation responses which frame the deliberations and conclusions of the Commission. The Commission can only accommodate submissions which are legally relevant, are feasible within the parameters of the statutory criteria and can be seen to have been publicly debated as openly and as fairly as possible under the [prescribed] process of statutory consultation ……
Therefore, some responses to the revised proposals which focused on local areas but which presented quite substantial 'ripple' effects elsewhere could not always be accommodated …..
Taking all the responses into account, we remained of the view that the revised proposals were substantially more compliant with our statutory framework than the provisional proposals."
(a) to transfer the Dungiven ward from mid-Ulster to Sperrin; and
(b) to retain the Mallusk ward within the constituency of south Antrim rather than Belfast north. Notably, in this context the Commission highlighted the "established principle of preserving the integrity of ward boundaries".
Grounds of Challenge
The error of law and reasons issue
"Courts should also not scrutinise reasons with the analytical rigour employed on statutes or trust instruments and ought to forgive obvious mistakes that were unlikely to have misled anyone."
A further principle frequently encountered in this sphere is that where reasons are to be provided they must be sufficient to facilitate assessment of whether the authority concerned has made a material error of law. Another formulation of general principle is found Stefan v General Medical Council [1999] 1 WLR 1293 at 1304B:
"The extent and substance of the reasons must depend upon the circumstances. They need not be elaborate nor lengthy. But they should be such as to tell the parties in broad terms why the decision was reached."
To like effect is the statement of Lord Clyde in R (Alconbury Developments) v Secretary of State [2003] 2 AC 295 at 170:
"As a general rule at least, the provision of 'all the thinking which lies behind' is not required."
Error of law?
Fetter of discretion/unlawful consultation
"The Applicant also contends that the Respondent wrongfully and unlawfully fettered its discretion after having adopted its revised recommendations. As disclosed in the FRR, from that point on the Commission erected artificial hurdles to the giving of proper weight to consultation responses …….."
In the argument of Mr Scoffield QC this ground assumed two central particulars. First, the Commission erroneously stated in its FRR that it could "…. only accommodate submissions which ….. can be seen to have been publicly debated as openly and as fairly as possible under the prescribed process of a statutory consultation". Second, the Commission stated, again erroneously:
"Given that the consultation is now closed, it would be preferable at this stage to avoid radical changes to our revised proposals."
I refer also to the other passages reproduced in [32] and [33] above.
Conclusion
Postscript: Final Order