By Nicholas Dobson, Pinsent Masons, Leeds


Unitary local government

As the saying goes, you cannot please all of the people all of the time, and Communities and Local Government Secretary Hazel Blears no doubt has reason to agree. For the announcement on 25 July by her local government minister, John Healey, as to the nine authorities proposed for unitary status - that is, one authority conducting all local government functions in a particular area - was not greeted universally with whoops of joy.



Once the legislative infrastructure (currently gestating in part 1 of the Local Government and Public Involvement in Health Bill) is in place, the secretary of state is 'minded to implement' nine unitary status proposals from these councils: Bedford Borough, Chester City, Cornwall County, Durham County, Exeter City, Ipswich Borough, Northumberland County, Shropshire County and Wiltshire County.



The proposals were judged on a range of criteria: affordability; support by a broad cross-section of authority partners and stakeholders; and the ability of the future structures to provide strong, effective and accountable strategic leadership, and to deliver genuine opportunities for neighbourhood flexibility and empowerment, as well as value for money and equity on public services.



Under the Bill, the secretary of state can invite a unitary proposal and make an order implementing the proposal with or without modifications. And, as Shakespeare would say, there is the rub - or at least one of them. For the legislation proposed in the Bill was not, of course, on the statute book when the invitations were issued. And on 18 June, three authorities (Congleton, Shrewsbury and Atcham BC and Harrogate BC) gained High Court permission to proceed with a judicial review of the unitary re-organisation process. Mr Justice King considered the authorities had an arguable case (among other things) that the secretary of state had no power to reach any decisions on the proposals before the Bill becomes law.



The 25 July announcement also brought threats of legal action from other disappointed authorities. For instance, Devon County Council's cabinet decided unanimously to mount a legal challenge. According to Devon, it has legal advice indicating grounds for a credible judicial review of the fairness of the government's process for handling, evaluating and consulting on the unitary proposals, and of the reasons for the secretary of state's decision in principle to back Exeter City Council's unitary bid.



And the seven district and borough councils in Durham announced 'a united and joint challenge' against the government's decision to 'impose a single unitary council across County Durham'. Their legal advice contends that the secretary of state: acted unlawfully and, in particular, without legal power which cannot be granted retrospectively; failed to follow her own requirements to ensure a broad cross-section of support from service users and citizens; and allowed a one-sided and unfair consultation which made no effort to account for the will of the people.



Bedfordshire County Council decided to challenge the decision to give qualified backing to Bedford Borough Council's unitary bid, saying it was financially risky and left no solution for the rest of Bedfordshire. The county therefore had a duty to challenge 'what is clearly a flawed and potentially unlawful decision'. This did not go down well with successful Bedford Borough Council, whose elected mayor, Frank Branston, writing in his blog, has described the actions of the county surrounding the proposed legal action as something of a 'collective seizure', and indicated its inconsistency with an inter-council agreement that, whatever the result, the Bedfordshire authorities would work together for the good of the county. Mr Branston pointed out that 'lumbering the taxpayer with potentially huge legal costs doesn't match with that in my book'.



However, the 'winners' in the process clearly saw things differently. Exeter City Council was 'confident in the robustness of the process conducted by the government in reaching its decision' and took the view that the legal challenge 'is a gross disservice to the people of Exeter and Devon'. And in welcoming the government's announcement, the leader of Northumberland County Council indicated that the county's proposals will save £17 million every year 'which can be invested back into frontline services'. In his view, it will also 'stop money being wasted on bureaucracy and duplication, and give local people more say'.



Unwelcome change is always painful, but in the end, the government, with its Bond-like 'licence to legislate', can always call the shots over the existence or otherwise of statutory authorities, subject of course to statutory requirements and public law requirements of fairness and so on. So whatever ultimately happens, all councils will doubtless wish to ensure working positively to provide effective governance, leadership and services for those they have been set up to serve. To assist with this, in August 2007 the government issued a paper outlining an approach to the practical and logistical issues needed for the implementation of the unitary proposals.



But as for the immediate future, if Shakespeare is right in telling us the course of true love never did run smooth, the course of bringing in the unitary local government proposals does not look set to run any smoother.



No breach of human rights for purity ring ban

On 16 July, Michael Supperstone QC, sitting as a deputy High Court judge, found that a school uniform policy prohibiting the wearing of jewellery, which in the circumstances included a 'purity' ring, did not contravene article 9 of the European Convention of Human Rights (freedom of thought, conscience and religion). The case in question was R (Playfoot) v Governing Body of Millais School [2007] EWHC 1698.



The claimant sought judicial review of the decision of the school governors not to allow her to wear a 'purity' ring as a symbol of her commitment to celibacy before marriage. She contended that this unlawfully interfered with her right to manifest her religion or beliefs contrary to article 9(1). This provides (among other things) that everyone has the right to freedom of thought, conscience and religion, including freedom to manifest his religion or belief, in worship, teaching, practice and observance.



Under article 9(2), freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society for the protection of the rights and freedoms of others.



The court considered that the material issues in the present case were: whether the wearing of the ring is a manifestation of a religious belief under article 9; whether forbidding the wearing of the ring interferes with her freedom to manifest her belief; and, if so, whether such interference was justified.



As to manifestation, the court noted the relevant principles following the decisions of the House of Lords in R (Williamson and others) v Secretary of State for Education and Employment and others [2005] 2 All ER 1 and R (Begum) v Head Teacher and Governors of Denbigh High School [2006] 2 All ER 487, that:

l Article 9 does not require permission to manifest religion at any time and place of one's choosing;

l Article 9 does not protect every act motivated or inspired by a religion or belief;

l In deciding whether conduct constitutes article 9 manifestation of belief and practice, it is first necessary to identify the nature and scope of the belief;

l Putting into practice a perceived obligation to act in a specific way can, in principle, be a manifestation of article 9 belief - in such cases the act is 'intimately linked' to the belief; and

l The court must have regard to the implicit (but not over-demanding) threshold requirements of seriousness, coherence and consistency with human dignity.



In this case, the court noted that the claimant was under no obligation by reason of her belief to wear the ring. Accordingly, the judge found that the claimant was not thereby manifesting her belief and article 9 was not engaged.



The court also found no interference both because the claimant voluntarily accepted the school's uniform policy and there were other means open to her to practice her belief without undue hardship or inconvenience. The judge rejected a submission that the ring was not jewellery because it was not designed to be decorative. As he pointed out: 'Whatever the ring is intended to symbolise, it is a piece of jewellery.'



The judge also found that the school was fully justified in acting as it did, bearing in mind that it did recognise exceptions to its general jewellery ban where the imposition of the strict rule would impose a disproportionately harsh result on a pupil. In so finding, the court noted that the uniform policy in question served a number of important functions.



These are worth mentioning since they are potentially of wider application:

l Fostering the school identity and an atmosphere of allegiance, discipline, equality and cohesion;

l Allowing children to learn in an environment which minimises the pressures which result from marking differences on grounds of wealth and status;

l Reducing the risk of bullying at school, which may arise where social pressures develop around clothes and jewellery through peer expectations;

l Promoting the highest standards of achievement in all aspects of a young girl's life, including her attitudes and conduct; and

l Health and safety reasons.



Religious manifestation is a particularly sensitive issue at present. The Begum case had to deal with Muslim religious sensitivities and found the school's particular actions to have been a proportionate means of achieving a legitimate aim. However, the school in Playfoot had to tackle a purported manifestation of a Christian belief and, in doing so, adhered to its policy in a reasoned and sensitive manner. These recent cases will assist schools and others who have to tread a hazardous path across a maze of minefields.