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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
    1. Attorney-General v Aspinall [1835-42] All ER Rep 525
    2. Kruse v Johnson [1898] 1 2 QB 91
    3. Roberts v Hopwood [1925] All ER 24; [1925] AC 578
    4. Secretary of State for Education and Science v Tameside MBC [1976] 3 All ER 665; [1976] 3 WLR 641
    5. Bromley London Borough Council v Greater London Council and another [1982] 1 All ER 129
    6. Wheeler and others v Leicester City Council [1985] 2 All ER 151 (CA)
    7. Wheeler and others v Leicester City Council [1985] 2 All ER 1106 (HL)
    8. R v Lewisham London Borough Council, ex parte Shell UK Ltd [1988] 1 All ER 938
    9. Norwich City Council v Secretary of State for the Environment [1982] 1 All ER 737
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

Norwich City Council v Secretary of State for the Environment [1982] 1 All ER 737

KERR LJ: The unfortunate but inescapable feature of s 23 of the Housing Act 1980 is that is envisages a direct confrontation between the central government and local authorities in relation to the administration of Chapter I of Part I of the Act, whereby local authorities are compelled to sell off large parts of their stock of council houses and flats to their existing tenants if they wish to buy them. Many tenants are inevitably likely to wish to do so, since the Act provides powerful incentives in the form of a large discount from the open market value and a right to a mortgage. Given these incentives, it is also highly likely that differences will arise in many cases between those tenants who wish to buy and their local authority. The tenants will want to see the procedure completed as soon as possible, so that they can start making mortgage repayments instead of continuing to pay rent; and, in the case of tenants who are near retiring age, delay may also affect the mortgage which they are able to obtain. On the other hand, their landlord, the local authority, may reasonably consider that its many other duties and functions deserve a higher priority in the use of its resources than expediting the sale of council properties to that proportion of the tenants who wish to buy. Such a confrontation has now unfortunately occurred in Norwich. It is therefore the duty of the court to rule on the legality of the minister's intervention in this case. This duty, it should be stressed, in no way involves any judgment of a political nature; neither in favour of an elected central government of one political colour; nor in favour of an elected local authority of another political colour; nor in favour of tenants as against their landlords, or vice versa, when their views differ as to how the scheme of the 1980 Act should be implemented. The court's duty is solely to construe the relevant provisions of the Act and to determine whether the minister's exercise of his powers under s 23 was lawful or not.

It is necessary at the outset to consider the wording of s 23 against the background of the scheme as a whole. Whether or not it is right to describe it as a 'penal' section, as contended on behalf of the council, it is certainly draconian in its terms, since its application in relation to any local authority is liable to have substantial consequences for the authority's funds in the housing sector, and therefore also for the general body of ratepayers. I therefore agree that a provision of this kind requires a strict construction in so far as its terms permit. On the other hand, short of seeking to exclude altogether any power of review by the courts, the wording of s 23 has clearly been framed by Parliament in such a way as to maximise the power of the Secretary of State and to minimise any power of review by the court. The governing words are: 'Where it appears to the Secretary of State'. These words make it clear that the determinative factor is the view of the Secretary of State; not the view of the local authority in question; nor any abstract standard of reasonableness to be determined by the court.....

It follows that in my judgment all the submissions put forward on behalf of the city council, to the effect that the council's approach to their obligations under the 1980 Act was reasonable or not unreasonable are of no direct relevance. The question of reasonableness only enters into the construction of s 23 in relation to the minister's decision to invoke his powers under the section on the basis of the facts which, on a proper self-direction, appear to him to exist by reference to the words of the section. A striking illustration of the profound difference of approach as between the council and the minister is provided by a key passage in the correspondence which passed between them....as illustrative of the council's approach, which the minister regarded as unacceptable when he decided to exercise his power under s 23. The chief executive of the council wrote as follows:

"It simply will not do, in our judgment, to neglect the problems of the homeless, and other statutory housing obligations(and the work we are doing to create employment(and combat other problems(just to enable a relatively small number of people, who are already comfortably housed, to buy a property a few months earlier than they themselves could, when they will lose nothing by waiting"....

The point for present purposes is that in my view the council could not possibly be regarded as having acted unreasonably in approaching their obligations under the Act on this basis. Indeed, many would wholly agree with this policy. But this is not the relevant question under s 23. The relevant question is whether the minister could reasonably conclude that in consequence of the policy of the council, as illustrated by this passage, their tenants had or might have difficulty in exercising their right to buy effectively or expeditiously. In this connection I do not think that the position can be put more clearly and succinctly than in the following passage from the judgment of the Divisional Court in the present case:

"If it [the local authority] decides, as this council has done, that giving effect to the tenants' rights to buy their homes should have a relatively low priority, so be it. But the consequence may well be that the tenants wilil have difficulty in exercising the right to buy effectively and expeditiously. If it appears to the Secretary of State that this is the result, the right to intervene will arise".......

I then turn to the facts....I feel bound to make two general observations at the outset about the minister's decision to intervene under s 23 on 3 December 1981 after much correspondence and several meetings with representatives of the council.

First, it seems to me, looking at the history as a whole, that there was overwhelming evidence in this case that the council's policy in relation to the implementation of the 1980 Act was not merely one of lack of enthusiasm but what might more appropriately be described as passive resistance. A striking example was the instructions for the obligatory 'counselling' interviews of those tenants who were entitled to buy, which included a warning (expressly imposed by the housing committee in capital letters) that the right to resell after five years might well disappear with a change of government... Further, I have no doubt that the council throughout took the understandable view that their approach to the 1980 Act was in accordance with their overall duties to the local electorate and to the ratepayers as a whole. But, as I have also already explained, in deciding to take the line which they did, the council courted the risk that the minister would ultimately act under s 23, since he was then entitled to conclude that this had become applicable to the situation.

The second matter which it is right to mention for completeness, in passing judgment on whether the view taken by the minister was one which he could reasonably take in all the circumstances, is that one cannot close one's eyes to the fact that, throughout the whole history, the policy of the council was only that of a majority of the councillors, and that a minority substantially agreed throughout with the complaints of the tenants and with the substance of the views expressed by the department and ultimately by the minister himself. What happened, as we were told, is, not surprisingly, that the council and the housing committee divided on these issues on party lines. This is only to be expected in relation to a highly political piece of legislation such as this. However, it does have the consequence that a minority of councillors, who were fully familiar with the local situation and the practicalities, clearly appear themselves to have taken the view that council tenants in Norwich were having difficulty in exercising their right to buy effectively and expeditously. Given this fact, it is a priori difficult to see why the minister could not reasonably have reached the same conclusion.

However, there still remains the question whether the minister in some way misdirected himself in fact or in law, on the lines of the two passages cited at the beginning of this judgment, since the court would be not only entitled but bound to set aside his decision if he did so. In this connection a number of submissions were made with which I must deal in so far as these are not already covered by the foregoing analysis of s 23 in the context of the 1980 Act. They were all concerned with matters which it is contended the minister unreasonably failed to take into account, or unreasonably took into account, in arriving at his decision. However, with the exception of the submission concerning the district valuer, I can do so fairly briefly.

First, it was submitted that the minister acted unreasonably in failing to take into account the council's overall duties, other than those relating to the tenants' right to buy. In effect, I have already dealt with this: although the council were entitled to decide what the priorities should be, the minister was entitled to intervene if the effect of the council's decision on priorities was that their tenants had, or might have, difficulty in exercising their right to buy effectively or expeditiously....

Next, it was said that the minister acted unreasonably in taking into account matters which neither his department nor he had taken up with the council or given them a fair opportunity to deal with....However, in my view the department and the minister were not obliged to become involved in argument with the council on every point which cumulatively led the minister to the conclusion that tenants were having difficulty in exercising their right to buy. Indeed, one of the draconian aspects of s 23 is that it does not require any prior process of consultation or warning before the notice which brings it into effect. No doubt, however, the minister must act fairly, and the long history of correspondence and meetings clearly shows that he did not act unfairly in any way in this case....

Then it was submitted that minister acted unreasonably in taking into account the performance of other local authorities....I cannot see anything unfair in relying on comparisons to some extent as one of the ingredients leading to the decision to invoke s 23. Indeed, I do not think that the minister could reasonably have been expected to approach the situation in Norwich in isolation, without some attempt to evaluate it in relation to what was happening elsewhere. He would certainly have been criticised if he had not done so......