Abiding by the rules

The correct approach
to the issue of predetermination was confirmed by the Court of Appeal in R (Lewis) v Redcar and Cleveland BC [2009] 1 WLR 83. The test is whether the fair-minded observer, having considered all the relevant facts, would conclude there was a real risk that minds were closed.

Given the dual roles and responsibilities of local authorities, with democratically elected councillors sitting
on committees, making administrative decisions, it is perhaps understandable that concerns regarding apparent bias or predetermination are frequently raised by disgruntled recipients of unfavourable decisions.

However, a proper understanding of the nature
of these decisions, and the different approach adopted
by the courts when dealing with
them, is vital when considering whether such a view is justified and whether a challenge on
this basis can realistically be maintained.

As was noted by Lord Justice Pill in Lewis, the importance of appearance in administrative decisions is generally more limited than in the judicial context. There are good reasons for this.

Dual responsibility

Local councillors are democratically elected politicians and, as such, have to be able to express views on the formation of policies and the general approach to be adopted towards certain decisions. Nevertheless, they also perform vital administrative decision-making functions.

While that dual responsibility does not prevent them from maintaining an open mind, it is recognised that it simply is not possible to achieve the same appearance of impartiality as would be expected from a judge. For this reason, the starting point must always be that an administrative decision-maker will approach the matter with an open mind.

This approach was clearly expressed by Justice Collins in R (Island Farm Development Ltd) v Bridgend Borough Council [2007] LGR 60, subsequently endorsed by Lord Justice Rix in Lewis, when he said: “The reality is that councillors must be trusted to abide by the rules which the law lays down, namely that, whatever their views, they must approach their decision-making with an open mind in the sense that they must have regard to all material considerations and be prepared to change their views if persuaded that they should…unless there is positive evidence to show that there was indeed a closed mind, I do not think that prior observations or apparent favouring of a particular decision will suffice to persuade a court to quash the decision.”

That view has now also been placed on a statutory footing by section 25 of the Localism Act 2011, which provides that an elected decision-maker will not be taken to have a closed mind just because of any previous indications that he may have given in relation to the matter.

The application of this approach to predetermination has recently been held to mean the existence of an outstanding judicial review does not mean that reconsideration of the decision subject to challenge (via the correct statutory process) will inevitably give rise to apparent bias or predetermination (R (Forge Field Society) v Sevenoaks District Council [2014] EWHC 1895 (Admin) per Justice Lindblom at [24] – [31]).

Democratic process

Finally, it is also important to recognise that extreme caution should be exercised when suggesting that words spoken in the course of political debate should in any way be regarded as underpinning any of the reasons for which the decision is taken.
As stated by Justice Cranston in
R (Bipshop’s Stortford Civic Federation) v East Hertfordshire DC [2014] EWHC 348 (Admin): “excessive forensic analysis of political debate has an appearance of fettering the democratic process”.

Despite the single test for apparent bias and predetermination, it is important to recognise that it will be applied very differently in the context of administrative decisions, where the informed observer will be taken to appreciate that elected decision-makers are aware of their obligations to maintain an open mind and will do so.

Accordingly, the court
will not readily find that administrative decisions are flawed on the basis of apparent bias or predetermination. SJ

Alexander Greaves is a barrister special from Francis Taylor Building 

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