Update. Local Government. Local Authorities, Politics and Bias

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1 Update September 2006 Local Government Local Authorities, Politics and Bias Should be pretty simple really, spotting bias. I mean if there's a council meeting on a controversial issue and a councillor goes in with a party group mandate to vote in a particular way then that's clearly bias isn't it? Well, no... For, as those who work within them will undoubtedly have noticed, local authorities are complex beasts. And whilst councils are public bodies subject to a wide range of public law duties, they are equally democratic organisations whose members are elected, predominantly through the political party process. And the courts do recognise and respect this, albeit within proper and reasonable bounds. Politics and Decisions Take Waltham Forest. Back in 1987 the Council had passed a resolution in favour of a rate increase of 62% for domestic and 56.6% for non-domestic properties. The majority Labour Group had previously decided (but not unanimously) to support that resolution. However, the members of the Labour Group who had voted against supporting the resolution in the Group meeting in fact voted for the resolution in the Council meeting. Sir John Donaldson M.R. indicated that no-one could complain if the councillors had re-examined the issues and changed their minds between the group and council meetings. However, the applicants submitted that there was no change of mind. And: 'The reason why the councillors voted for the resolution was that they were subject to party discipline and to the political 'whip' system. The councillors voted as they did, not because they considered that the resolution should be passed, but because, in the light of the majority group's private vote, their discretion had been fettered and they had no option but to vote as they did.' Whilst Sir John Donaldson accepted that if this had been made out on the facts he would have had no hesitation in holding that the councillors had been 'in breach of their duty to make up their own minds on the issue of what was an appropriate rate and would have been minded to quash the resolution' he did not consider that this had been made out on the facts. And whilst the Council's Labour Group had adopted the nationally approved 'Standing Orders for Labour Groups on local authorities' which, in the absence of a decided free vote, required members to refrain from speaking or voting in opposition to the decisions of the Labour Group in matters that were not 'quasi-judicial', Sir John Donaldson did not: '... find these rules in any way objectionable. What would be objectionable would be a provision that a member had forthwith to resign his membership of the council if, in the absence of a conscience situation, he intended to vote contrary to group policy. This would fetter his discretion and make him a mere delegate of the majority of the group. But this is not the position. Standing orders make provision for the withdrawal of the policy whip if a member acts in breach of the standing orders, but there is nothing to prevent his continuing to be an independent member of the council and to vote as he sees fit...' Stocker L.J. agreed and said that: 'I can see no reason why a councillor should not vote in favour of a resolution contrary to his own intellectual assessment of its merits, taken in isolation, in order to secure unanimity of vote, provided he retains an unfettered discretion in the council chamber. There is nothing, in my view, morally or legally culpable in voting in support of a majority which has considered, and rejected, his arguments providing he considers all the available options and considers that the maintenance of such unanimity is of greater value to the ratepayers than insistence on his own view. This is not invalidated by the fact that certain sanctions which could be imposed on a failure to accept the party whip might follow as a consequence.' Earlier, in 1983, Woolf J in R v Amber Valley DC, ex p Jackson [1984] 3 All E.R. 501, considered the effect of political group policy on a district council planning decision and asked 1

2 whether this would have the effect of disqualifying the Labour majority from considering the planning application: 'It would be a surprising result if it did since, in the case of a development of this sort, I would have thought that it was almost inevitable, now that party politics play so large a part in local government, that the majority group on a council would decide on the party line in respect of the proposal. If this was to be regarded as disqualifying the district council from dealing with the planning application, then if that disqualification is to be avoided the members of the planning committee at any rate will have to adopt standards of conduct which I suspect will be almost impossible to achieve in practice... The rules of fairness or natural justice cannot be regarded as being rigid. They must alter in accordance with the context.' And more recently, on 24 February 2000, the Court of Appeal in R v Local Commissioner for Local Government for North and North East England, ex parte Liverpool City Council [2000] LGR 571 had to consider the issue in the context of an appeal against a refusal by Hooper J on a judicial review by the Council to quash a report of the Local Ombudsman who had found maladministration in (amongst other things) seven councillors voting in favour of proposals by Liverpool Football Club to erect a stand extension overshadowing neighbouring houses without declaring their interest as season ticket holders or regular attenders in breach of the disclosure rules in the National Code of Local Government Conduct. Henry L.J. said that: 'The line is clear - a local authority councillor is entitled to give weight to the views of party colleagues, but should not abdicate responsibility by voting blindly in support of party policy or party whip (see R. v Waltham Forest LDC [1988] QB 419)'. However, he also sounded a note of caution: 'In some planning applications, particularly those with resource implications, party policy will be a material consideration, but certain planning applications (and I would have thought this was one) would be outside party policies, and it is hard to see how then heavy and perhaps decisive pressure at the pre-meeting caucus would be a material consideration to be taken into account when exercising the Section 70 powers to determine planning applications under the Town & County Planning Act, 1990.' So whilst the line might not perhaps be as clear as Henry J indicated, it is nevertheless there. Councillors are entitled to give weight to the views of their political colleagues but must make sure their discretion remains open. In other words, whilst councillors might be entitled to have a predisposition in respect of the decision in question, they mustn't allow this to become a predetermination (see Ouseley J in Bovis Homes v New Forest PLC [2002] EWHC 483). Some Key Decisions on Bias The test for bias As is now widely known, following Porter v Magill; Weeks v Magill [2002] LGR (per Lord Hope): 'The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.' Consequently, the current test for bias (in local authority decision making as elsewhere) is whether: a fair minded observer who is suitably informed; and who having considered the facts would conclude (i.e. not might conclude) that there was a real possibility of bias (i.e. less than a real probability of bias). Georgiou At least until August 2006, the recent leading case on local authority bias (and particularly in relation to planning decisions) was Georgiou v Enfield London Borough Council [2004] EWHC 779 (Admin). This was decided by Richards J on 7 April The case concerned a challenge to decisions of the Council through its planning committee on 17 June 2003 (amongst other things) to grant planning consent for the erection of a mental nursing home (subject to the conclusion of a section 106 agreement). The claimant was chairman of a local business association which objected to the applications. The Council had under its constitution set up a Conservation Advisory Group (CAG) to consider and advise on a range of conservation issues. These included considering and advising the Council's planning committee on proposals for development referred to the CAG which (as the Court noted) 'could affect the character or appearance of conservation areas, ancient monuments, listed buildings or their settings' as well as advising that committee 'on the preservation or enhancement of the character or appearance of heritage features, areas and their environs'. Three of the members of 2

3 the planning committee which made the decisions in question were at a previous meeting of the CAG. Those members had voted in support of the applications in question. The Claimant contended that participation in the decisions by members of the planning committee who were also members of the CAG gave rise to an appearance of bias sufficient to vitiate the decisions of the planning committee. In the circumstances, Richards J did have 'concerns about what happened in this case and the objective impression that it conveyed'. Although the remit of the CAG was to consider only the conservation implications of the applications, its conclusion was expressed in simple terms of support for the applications without any qualification. And at the meeting of the planning committee there was nothing said about the limited function of the CAG or about the need for those with dual membership to put on one side the support expressed in the CAG and to examine all the relevant planning issues before reaching the planning decisions. In the circumstances the Court took the view (albeit 'not without a degree of hesitation') that: '...a fair-minded and informed observer would conclude that there was a real possibility of bias, in the sense of the decisions being approached with closed minds and without impartial consideration of all the planning issues, as a result of the support expressed by the CAG being carried over into support for the applications in the context of the planning committee's decisions'. As noted above, in Porter v Magill Lord Hope had said that, from the standpoint of the fair-minded and informed observer, assertions from the party in question that he or she was unbiased are unlikely to be helpful. Consequently in the instant case, whilst members had indicated in their witness statements that they had approached the planning decision with open minds, Richards J did not think that 'any significant weight' was to be attached to these. Island Farm But on 25 August 2006, Collins J took a different view about the reliability of assertions by decision-making members that they had open minds at the material time. He also brought some of the stream of 'realpolitik' cases mentioned above into the equation. The case in question was R (Island Farm Development Ltd) v Bridgend County Borough Council [2006] EWHC 2189 (Admin) which concerned a decision by the Council to refuse to sell to a developer land the Council had previously been in negotiations to sell. This was following a change in political control where local opposition to the proposed development had featured prominently in the local elections. In the light of the objective nature of questions of apparent bias, Richards J in Georgiou had not attached any 'significant weight' to members' witness statements where they stated that they had approached the planning decision in question with open minds. However, Collins J doubted this approach and accepted the evidence before him that 'each member was prepared to and did consider the relevant arguments and each was prepared to change his or her mind if the material persuaded him or her to do so.' Consequently, Collins J was not '...prepared to accept that there was apparent bias or predetermination which vitiated the decision.' In Porter v Magill [2002] 1 All ER 465, Lord Hope had said that whilst the auditor's reasons for rejecting allegations of bias were relevant, nevertheless: '...an examination of them shows that they consisted largely of assertions that he was unbiased. Looking at the matter from the standpoint of the fair-minded and informed observer, protestations of that kind are unlikely to be helpful.' Consequently, Lord Hope had given no weight to the auditor's reasons. However, Collins J distinguished Porter v Magill in the context of local authority decision-making, remarking that Porter 'was a very different situation' involving 'what amounted to a quasi-judicial decision by the Auditor'. He therefore found it easy in such a case to see why the appearance of bias tests should apply to full extent. In the absence of an appeal, which is apparently unlikely, Island Farm leaves the law of bias in relation to local authority decisions somewhat in disarray. In future, will the evidenced assertions of members that they took the decision in question open-mindedly and without bias generally be accepted by the courts? Or will the courts follow the narrower view of Richards J in Georgiou, following the above observations of Lord Hope in Porter v Magill? You pays your money... Nevertheless, despite the conceptual comments of Collins J in Island Farm, there is a clear distinction between that and Georgiou. For Georgiou concerned a planning decision, which is much further into public law territory than a decision whether or not to dispose of local authority land. So, it's very much a 'horses for courses' analysis that will be needed on each occasion. But members will bear in mind that perception can very often be reality. And if they have an 3

4 anxiety about the decision in question sufficient to prompt a consultation of the legal team, then that perception may well have wings. Georgiou v. Island Farm? Some Pointers Given the different approaches in Georgiou and Island Farm a few pointers might be in order: Perception is a variable animal and can often be as good as reality. It will therefore be important to check whether in the light of the particular facts and circumstances there might fairly be said to be a real possibility of bias or the appearance of bias. Bias considerations will clearly be different for different types of decision. Island Farm concerned a decision not to sell Council land (i.e. a decision substantially in the private law arena) and the court decision was therefore in relation to those facts and circumstances. On the other hand, as indicated, planning decisions reach further into public law territory in that they are statutory public functions affecting public interests. The decision in Island Farm which properly noted caselaw on political predisposition was therefore different in nature and quality from Georgiou. However, whilst Island Farm highlights the issue of judicial deference to the political role of councillors, it would be unwise to forsake the Georgiou principles generally in favour of the Island Farm approach. For Georgiou will always be safer. As to assertions of decision propriety by the elected members who made the challenged decision, Collins J sought to draw a distinction between the function of the auditor in Porter v Magill (from which this stream of argument originated) and that of the decision not to sell in Island Farm. It was no doubt a robust decision of Collins J to depart from the dicta of Lord Hope concerning assertions and protestations on the part of those accused of bias in Porter & Magill (see above). Time will tell whether that distinction was sustainable. However, given the fact that a finding of bias will vitiate a decision, it is usually better to be safe than sorry. So whilst as the law currently stands, Jesuitical distinctions might be attempted concerning the weight to be afforded to member evidence in different types of decision where bias or apparent bias may be in issue, careful driving through this hazardous territory is certainly recommended. And the Georgiou approach is considered advisable where there is any doubt at all. Welsh Assembly - Careless Talk Can Cost Decisions The decision of Lindsay J in the Administrative Court on 21 December 2005 in Elizabeth Condron v (1) National Assembly for Wales (2) Miller [2005] EWHC 3007 illustrates how careless talk can cost decisions. For Mr Carwyn Jones, the Chairman of the National Assembly's Planning Decision Committee (PDC) and Planning Minister, had remarked in a brief conversation with a resident, Jennie Jones, who had been demonstrating against a development which was to be considered next day by the PDC that he was 'going to go with the Inspector's Report'. In the circumstances, Lindsay J concluded that 'there was an unacceptable possible pre-determination in the Planning Decision Committee' that authorised the grant of planning permission in question. A fair-minded observer hearing the words attributed as above by Jennie Jones to Carwyn Jones, on learning (amongst other things) that the Minister was to be the Chair of the PDC dealing with the application next day would in the Court's view conclude that there was a real possibility that the member of the PDC was biased and that: 'the member would be approaching the question of permission with a closed mind and hence also without impartial consideration of all relevant planning issues'. As to the legal consequence, following Georgiou, Lindsay J noted that it will usually be inappropriate on a finding of pre-determination not to quash the decision in question. In the circumstances, whilst he recognised that 'this is a very large consequence for a very small remark' Lindsay J did indeed set the Assembly's decision aside. So the Condron case illustrates the care that is needed in relation to planning and other decisions in the public law area. Freemasonry and Bias Newman J in the High Court on 5 April 2006 (see R (Port Regis School Ltd) v North Dorset District Council [2006] EWHC 742 (Admin)) gave some useful guidance on the how Freemasonry might fit into the scheme of bias considerations. The case concerned an allegation of apparent bias in respect of a decision taken by the full North Dorset District Council. This was to accept the recommendation of its Development Control Committee to approve an application for planning consent by the Gillingham and Shaftesbury Agricultural Society. The apparent bias was in the light of the fact that 4

5 two members who attended and voted at the full Council meeting were Freemasons. The application was for planning permission to use agricultural land as a showground and to erect a pavilion. The supporting business plan stated that the Agricultural Society had held talks with the masonic lodge in Gillingham about providing a dedicated room in the pavilion for the lodge's use in relation to which the lodge would provide a capital injection of some 350,000 as well as contributing to the running costs. The officer's recommendation to Development Control Committee was that there could be no justification for the Development in accordance with normal planning policies and that it should consequently be refused. However, the Committee resolved that it was minded to approve the application and, since the application amounted to a departure from the Local Plan, referred it to the full Council for approval. The officer recommendation to full Council was that the application should be refused because justification had not been established and there would be unacceptable harm to the countryside. In the circumstances the recommendation was 'firmly to refuse planning permission'. The Council nevertheless approved the application. In the event Newman J came to the conclusion that a fair minded observer, informed of the facts in connection with Freemasonry as placed before the court and having regard to the circumstances of the instant case would not conclude that there was a real possibility of apparent bias affecting the relevant decision of the full Council. He considered that a fair minded appraisal had to be made of (amongst others) the following: 1. The Masonic principles of mutual defence and mutual support did not suggest unquestioning support under any circumstances. For instances, a mason 'must not engage in offences contrary to the laws of God and the ordinances of the realm'. 2. The information and guidance given to Masons includes advice on the need for declarations of interest to be made including, where appropriate, membership of Freemasonry. 3. The councillors in question were required by law and by their Freemasonry to adhere to the legal obligations imposed on them by the Local Government Act. 4. Freemasonry does not require a Freemason in local government to be partial to any other Freemason. Freemasonry underpins the requirements of impartiality and fairness set by the law. 5. Lord Bingham in Locabail (UK) Ltd v Bayfield Properties Ltd [2000] 1 All ER 65 considered that ordinarily, Masonic associations would not require a judge to recuse himself. Also, Lord Irvine, former Lord Chancellor, did not accept that the oaths of mutual assistance were incompatible with the judicial oath. Newman J consequently concluded in the circumstances of the particular case that the Freemasonry of the members in question did not give rise to apparent bias in the decision of the full Council to grant the planning consent it did. Conclusion Being a local politician has many different facets. These include: acting as a community representative; being a member of a substantial multi-functional and statutory corporate body; possibly being an Executive member or overview and scrutiny committee member and being represented on various outside public and other bodies, partnerships and council-related companies. The decisions in which the councillor will participate are equally extremely varied in nature and quality. Some will be highly political and policy driven and some will be quasi-judicial. There will clearly also be a spectrum of decision types in between. But whilst as indicated, the law recognises and respects the role of politics in local government, equally, public law decisions have to be properly made. And if bias or apparent bias happens to be established, then the courts will find the decision to be invalid. So council members will need to place ever more reliance on their lawyers to guide them through the maze on a minefield that occupies the territory of politics and bias. Nicholas Dobson National Head of Local Government Law Pinsent Masons 2006 This note does not constitute legal advice. Specific legal advice should be taken before acting on any of the topics covered. LONDON BIRMINGHAM BRISTOL EDINBURGH GLASGOW LEEDS MANCHESTER BRUSSELS DUBAI HONG KONG SHANGHAI T Should you have any questions please contact Nicholas Dobson (nicholas.dobson@pinsentmasons.com) or your usual Pinsent Masons adviser who will be able to assist you further.