All in the mind

The Government has sought to clarify the rules on predetermination so that councillors can express their opinions on issues of local importance without fear of legal challenge. Graeme Creer questions how successful they have been.

The idea that members cannot take part in a decision because they had expressed strong views in the past, and the perennial problem of the ‘single issue’ member, elected on the back of a local campaign, but unable to influence the issue, have always been deeply unpopular with councillors.

On the other hand, can a planning decision be taken by members who have sorted it out in the pub beforehand, or whose implacable opposition to the development means that nothing that is said in the officers’ report or at the meeting matters in the slightest?

The case law has moved the common law position around over the last decade and the pendulum has swung from one side to another. The concept of predetermination derives from ancient common law principles of natural justice. As the case law developed, a distinction was drawn between ‘bias’ (having a personal interest in the decision) and ‘predetermination’ (having a closed mind).

Decision makers are usually reluctant to own up to actual bias or predetermination, so the courts invented the concept of ‘apparent’ bias and predetermination. The classic test is found in Porter v Magill [2002] 2 AC 357: “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.”

A string of cases indicated judicial intolerance of any evidence of bias or predetermination. Finally, though, another distinction was drawn, between ‘predetermination’, which is unlawful, and ‘predisposition’, which is not. In the more recent cases, for example R (On the Application of Island Farm Development & Anor) v Bridgend County Borough Council [2006] EWHC Admin 2189 and Persimmon Homes Teeside Limited v R (on the application of Kevin Paul Lewis) [2008] EWCA Civ 746, the courts recognised that councillors will legitimately have firm views about issues which they have to decide, and will have expressed those views, and that this should be allowed.

Common law pendulum

The common law pendulum is now firmly on the permissive side. You can be confident now that only strong evidence of a firmly closed mind will amount to predetermination, as opposed to predisposition.

Unfortunately, the folk memory of the earlier cases is still persuasive. Last June, Andrew Stunell MP said: “It is absolutely the case that it is wrong for local representatives to be barred from taking part in decisions, even if they have a clear predisposed view. The fact is that despite the advice that is often handed out to them, it is not wrong for councillors to be predisposed towards a particular view, or to express and publicly voice it.”

That is a fair description of the current law, but plainly there had to be legislation to change what people thought the law to be, and, despite a valiant attempt in the House of Lords by Lord Pannick to inject some understanding of the legal issues, and a promise from the Government benches to go away and think really hard about it, we now have section 25 of the Localism Act 2011.

Section 25 applies to decisions involving the discharge of a function, and taken by a county council, a district council, a parish council, a county borough council or a community council in Wales, a London borough council, the Common Council of the City of London, the Council of the Isles of Scilly, the GLA, a national park authority and the Broads authority. All the other public bodies that take decisions have to make do with the common law. It only applies to decisions taken after section 25 comes into force on 15 January 2012.

The new rule applies if there is an issue about the validity of a decision, and it is relevant to that issue whether an elected mayor, councillor or co-opted committee member had, or appeared to have, a closed mind (to any extent) when making the decision. It applies if bias or predetermination is alleged “or otherwise”, so it catches a challenge made on other grounds, provided that the closed mind issue is relevant. It does not apply to officers.

The rule is this. “A decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the decision just because:

(a)  the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and

(b)  the matter was relevant to the decision.”

Let us unpick this. It is ‘a rule of evidence masquerading as a rule of law’. It is only about indicating your view. The phrase ‘just because’ looks strange in this setting, but it means that other activity that could evidence predetermination – agreement with others, for example – could still make the decision invalid. Personal bias, because the decision maker is affected by the decision in his or her personal capacity, would also still invalidate the decision and could scupper a single-issue member despite section 25. This makes sense, because indicating views is what councillors want to be able to do.

Does this change the law?

Under the common law, indicating what view you ‘took’ in the past or ‘might take’ in the future, should not matter. But indicating what view you ‘would take’ is different. At the moment, if a licensing committee member says “whatever happens, come hell or high water, whatever is in the officers’ report or said at the meeting, I am going to vote against granting this licence”, this would evidence a completely closed mind, and be seen as predetermination rather than predisposition. The decision would be invalid. In future, it would be valid. So, in the vast majority of cases section 25 will not change the law at all, but in a few cases it will.

Is that the end of it? Go back to our licensing committee member. As things stand the decision could be challenged on a number of grounds. Predetermination would be one, but administrative law challenges usually adopt a scattergun approach, and the claimant could allege irrationality, failure to take a relevant consideration into account, taking an irrelevant factor into account, improper consultation, breach of the principles of natural justice, failure to comply with Article 6 of the ECHR and goodness knows what else. In licensing matters, the relevant considerations are limited to statutory grounds and they will have been canvassed in the officers’ advice. They will also include representations from consultees, and the consultation process will be inadequate if their comments are disregarded. If the decision-maker has vowed to ignore the relevant factors, then they will not have been taken into account and you would expect the decision to be set aside.

More subtly, perhaps, if the decision-maker has, for electoral reasons, given a firm commitment to a particular course of action, and takes that commitment into account, is this a relevant factor? If it is not, the decision should be unlawful. And, if the decision is taken in circumstances which used to be called ‘quasi judicial’, or if the decision affects your human rights, will there have been a fair hearing if one of the decision makers is not listening to what you have said, evidenced by prior statements about the conclusion he was going to reach?

‘Or otherwise’

This is where ‘or otherwise’ comes in. It seems not to matter how the challenge is framed, so long as it is relevant that a decision-maker appeared to have had a closed mind. He is not to be taken to have had a closed mind just because of the view that he indicated. Then it gets harder. Imagine a challenge based on improper consultation, where the consultees argue that their views were not taken into account because of a statement by a member that he was not interested in what they said. It is ‘relevant’ to the question of whether or not their views were considered that the decision-maker appeared to have had a closed mind. That is the reason why he did not consider their views and the statement is the evidence that that was the case. Logically, therefore, the challenge will fail if there is no other evidence. Is this what Parliament intended?

Now imagine that our councillor had said before the meeting that he proposed to vote to refuse the licence because of the racial origin of the likely visitors. He has taken irrelevant matters into account, failed to have due regard to the equality duties, and exercised a power for an improper purpose. Section 25 should not help him. It may arguably be ‘relevant’ to the decision that he appeared to have had a closed mind, and that the only evidence of this is the expression of view, but the vice here is not the closed mind, it is what was in his mind, open or closed.

If this is right, then challenges based on a prior expression of views will fail if the basic allegation is that the decision maker did not consider all the right things, but will succeed if they allege that he considered the wrong things.

Thus our law develops. The courts have to find a way of drawing a line between right and wrong. They lurch too far in one direction, realise their mistake, and lurch back to where they ought to have been. Parliament intervenes to correct the old mistake. This stops them lurching back again, which is fine, but Parliament goes too far and legitimises things which cut across other important principles. The next stage is for a trickle of awkward cases to reach the courts. They are likely to try to push section 25 back into the predetermination box, despite ‘or otherwise’, to find evidence of predetermination other than the indication of the member’s view, or to decide that the question is what was in the member’s mind, not whether it was ‘closed’.

Conclusion

Lawyers advising members and committees are in some difficulty.  Under the common law, the cautious approach might have been “it shouldn’t matter that you said those things, but to be safe you should not take part in the decision”. That advice will no longer be acceptable, but there will sometimes be circumstances where a blanket assurance that “it doesn’t matter at all” will be over generous. As always, we await developments.

Graeme Creer is a partner at Weightmans LLP. He can be contacted on 0151 243 9834 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..