Local government decisions

The fundamental rule of natural justice that no one should be a judge in his own cause has been the subject of considerable judicial comment in recent years as regards local government decision making. Differences of approach have emerged depending on whether the decision is judicial or quasi-judicial, or administrative. There are also fine distinctions between actual and apparent bias; between the softer concepts of pre-determination and pre-disposition; and between personal and pecuniary interests as opposed to ideological bias. So where does this leave local authority officials and does the law really prohibit councillors speaking out?

The government is currently proposing a clause in the localism bill (at present clause 14, originally clause 13), which will make clear that a decision maker is not to be taken to have had, or to have appeared to have had, a closed mind when making a decision just because he or she has previously done anything that directly or indirectly indicated what view he or she takes, or would take, in relation to a relevant matter.

It is said this is necessary as councillors are being advised not to vote on issues where they have previously expressed views of them, which 'makes a mockery of local democracy' (Conservative Party green paper, February 2010).

The essential distinction between legitimate political predisposition, as opposed to illegitimate predetermination, is long-established (see for example R v Amber Valley District Council, ex p Jackson [1985] 1 WLR 298). The former is consistent with being prepared to consider and weigh relevant factors in reaching the final decision, whereas the latter involves a closed mind. The localism bill supports this distinction, but doesn't alter it.

Unlawful influence by pecuniary or personal interest in the outcome (see for example R v Secretary of State for the Environment, ex p Kirkstall Valley Campaign Ltd [1996] 3 All ER 304) is also unaffected by clause 14, which is limited to actions directly or indirectly indicating views.

Following a high water mark in 2004, when planning decisions were quashed because members of the council's conservation committee who supported the applications had also sat on the determining planning committee (Georgiou v Enfield London Borough Council [2004] LGR 497), there has been an increasing recognition of the practical realities of local politics by the courts.

Attending meetings with objectors, councillors telling people how they intend to vote, and expressing views locally, have been held not to constitute predetermination, when other facts have indicated that arguments at the relevant planning meetings have been heard and taken into account (Condron v National Assembly for Wales [2007] LGR 87, R (Island Farm Developments Ltd) v Bridgend County Borough Council [2007] LGR 60 and Neath Port Talbot County Borough Council v Linda Ware [2007] EWCA Civ 1359). Councillors are entitled to be pre-disposed, and to act in a way that demonstrates their views to the public (R (Lewis) v Redcar and Cleveland Borough Council [2009] 1 WLR 83). Advice given by Standards for England reflects this.

The localism bill doesn't add or change anything with regard to administrative decisions made by members elected to provide and pursue policies (for example, planning decisions). On current authority, councillors ought to feel comfortable indicating what view they hold or would take in relation to an outcome or relevant matter, so long as they have regard to all material considerations and give fair consideration to relevant points raised with them when they actually come to make the decision.

That leaves the bill's impact on local government judicial or quasi-judicial decisions '“ for example licensing or village green decisions. The courts have been keen to stress that the pre-determination rules are of far greater importance in the judicial context, and the classic statement of the rule in Porter v Magill [2001] UKHL 67 was made in such a context.

Clause 14, however, covers any decision of a committee or an officer made in discharging the authority's functions, which could include judicial decisions. It remains to be seen whether this breaches article 6 of the ECHR and the principles of natural justice.