localism bill – theoretical change or a real difference?

April 2011 Richard IvoryAssistant Solicitor to the Council

Localism Bill – theoretical change or a real difference?

RTPI ConferenceSouthampton 20th April 2011

Richard IvoryAssistant Solicitor to the Council


LOCALISM BILL

Competence

Predetermination

Standards

Governance


GENERAL POWER OF COMPETENCEClause 1

Authority to have power to do anything in any way whatever that individuals of full capacity generally may do;

Power includes things unlike anything “in nature, extent or otherwise” that local authorities or other public bodies may do;

Also includes power to do things “anywhere in the United Kingdom or elsewhere”;

Generality of power not limited by existence of any other overlapping power.


BOUNDARIES OF COMPETENCEClauses 2 – 4

Existing statutory restrictions will apply;

But those coming into force after the Localism Act (post-commencement limitations) will limit the competence power only if expressed accordingly;

Clause 2(3) sets other functional boundaries and clause 2(4) defines both pre-commencement and post-commencement limitations;

Powers to charge for discretionary services (clause 3) and to trade through a company (clause 4) in line generally with the provisions in Sections 93 and 95 of the Local Government Act 2003;


BOUNDARIES OF COMPETENCEClause 5

Various powers reserved to the Secretary of State in clause 5 include power:

to remove any existing statutory restrictions which impede the exercise of the competence power;

to prevent authorities from doing specified things and to impose general or specific conditions on the application of the competence power.


EXTENT OF COMPETENCE POWER

The competence power applies only to English local authorities;

The well-being power will, therefore, be restricted to authorities in Wales when competence goes live;

The Welsh Assembly Government will no doubt be considering whether to continue with well-being or whether to make similar provision to the competence power.


PREDETERMINATIONClause 13

Despite the pre-Bill rhetoric, the provisions are modest and essentially replicate the current law which acknowledges the democratic mandate of councillors;

So, Clause 13(2) clarifies that a local authority member decision-maker is not to be taken to have or apparently had a closed mind when making a decision “just because … the decision-maker had previously done anything that … indicated what view the decision-maker took, or would or might take, in relation to the matter”.


PREDETERMINATION (2)Clause 13

As the Court of Appeal pointed out in R (Lewis) v Persimmon Homes Teeside Ltd [2008] EWCA Civ 746 “clear pointers” will be required if a councillor’s “… state of mind is to be held to have become a closed, or apparently closed, mind at the time of decision”. As with clause 13, this effectively recognises the democratic role of councillors and heightens the evidential bar for predetermination.


ADMINISTRATIVE LAW

Clearly, whilst the competence power will be subject to the usual administrative law constraints (including the need to exercise statutory discretion reasonably, fairly, with due regard to the fiduciary duty and in compliance with any applicable Convention rights) it is clearly intended to be broad and is framed accordingly.

Whilst administrative law will prevent foolhardy use of public monies, the proposed new power does seem well-positioned to give authorities the confidence to be innovative.


STANDARDSChapter 5 of Part 1 and Schedule 4

Existing standards regime to go;

Whilst relevant authorities (see clause 15(4)) will be required to ‘promote and maintain high standards of conduct’ by their members, apart from provisions concerning member interests in clauses 17 and 18 (including a criminal offence for those in breach), the proposed conduct regime will be essentially permissive and discretionary;

It will therefore be up to authorities as to whether or not they decide to adopt a code of conduct ‘expected of members. . .acting in that capacity’.


STANDARDS (2)Chapter 5 of Part 1 and Schedule 4

If (as at present) a written allegation is made to a relevant authority that a member has or may have failed to comply with its code of conduct, then whilst the authority must consider whether it is appropriate to investigate the allegation, it will need to do so only if ‘it decides that an investigation is appropriate’.

But proposals to criminalise authority members who ‘without reasonable excuse’ breach prospective provisions governing member interests.


HUMAN RIGHTS PRINCIPLESAbsolute & Qualified Convention Rights

Some Convention rights are absolute (e.g. Article 3 (prohibition of torture and inhuman or degrading treatment) and Article 4(1) 'No one shall be held in slavery or servitude');

Others are subject to specified exceptions or qualifications (e.g. Article 4(2) and (3) (prohibition of forced or compulsory labour) and Article 5(1) (right to liberty and security).

Qualified rights include Article 8 (right to respect for private and family life), Article 9 (freedom of thought, conscience and religion) and Article 10 (freedom of expression). In addition to other qualifications these all include the need for any departure to be in accordance with or prescribed by the law and to be ‘necessary in a democratic society’.


ARTICLE 8 – Respect for Private & Family Life (Qualified Right)

Article 8(1) provides that everyone has the right to respect for his private and family life, his home and his correspondence;Per Article 8(2)) there shall be no interference by a public authority with the exercise of this right:

‘. . . except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others’.


PROPORTIONALITY

Proportionality refers to the principle imported from European Convention on Human Rights jurisprudence;

This is essentially that: restrictions on individual Convention rights are proportionate to the legitimate public aim pursued and that the reasons advanced for the proportionality of the restriction are ‘relevant and sufficient’;

In considering matters whereby the qualified Convention rights of individuals may be affected, a fair balance must be struck between the competing interests of the individual and of the community as a whole.


PUBLIC AUTHORITY DUTYSection 6 HRA 1998

Section 6(1) of the Human Rights Act 1998 provides that it is unlawful for a public authority to act incompatibly with a convention right. By section 6(3)(b), a ‘public authority’ includes ‘any person certain of whose functions are functions of a public nature’.

However, per section 6(5), ‘in relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private’.


Article 1 of the First Protocol to the ECHR – Protection of Property

Rights – Protection of Property. This provides that:

‘Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.’


FAIRNESSNatural JusticeFoundation of the public law concepts of fairness and avoidance of bias;

Two elements:

Decision should be adjudicated by an impartial judge (nemo judex in suo causa);Decision should not be taken without all parties being heard (audi alterem partem);

Analogous to Article 6 ECHR (right to fair trial)


FAIRNESS & REASONSR (Savva) v Royal Borough of Kensington & Chelsea [2010] EWCA Civ 1209Public authorities therefore have a duty to act fairly;

If no statutory duty to give reasons key question is whether fairness requires reasons to be given;

CA agreed with judge in Savva that fairness required reasons for the calculation of a disabled person’s personal budget under Health and Social Care Act 2001 regulations;

Court reject authority’s protestations of excessive onerousness – reasons must be given if fairness requires;

However, adequate reasons can be given with reasonable brevity.


BIASNature of Bias

Per Lord Hope in 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 factswould conclude (i.e. not might conclude)that there was a real possibility of bias (i.e. less than a real probability of bias).


Predetermination & Predisposition

Means making up and closing your mind before a decision. If this happens then the decision is unlawful. Test for predetermination the same as for bias.

Predisposition means having a tendency towards or likelihood of deciding a matter in a particular way but with the mind left completely open to the possibility of deciding otherwise in the course of the decision process e.g. by being influenced by the debate.

It is lawful to have an open-minded predisposition

It is unlawful to have a closed-minded predetermination


Redcar & Cleveland caseCA on 1 July 2008 in Persimmon Homes Teeside Limited v. R (Kevin Paul Lewis) [2008] EWCA Civ 746 overturned the December 2007 decision by Jackson J to quash a politically sensitive decision of Redcar and Cleveland Council taken during the 2007 elections purdah period.

Court came to different decision on the facts but took the view that the local authority decision context different from the judicial.

Since councillors are entitled to have a disposition in favour of granting planning permission 'clear pointers' are required 'if that state of mind is to be held to have become a closed, or apparently closed, mind at the time of decision'.

Court is to put itself in the position of the fair-minded and informed observer in the test for bias and predetermination.


Predetermination & Predisposition revisited

Central to the consideration of whether there is bias or predetermination must be the recognition that councillors 'are not in a judicial or quasi-judicial position but are elected to provide and pursue policies'.

However, basic principles of bias, predetermination and public law apply.

On the facts, there were exceptional logistical reasons for the decision to be taken during the purdah period.


Summary of the principles following Court of Appeal in Redcar & Cleveland

•Whilst councillors must have regard to material considerations and give fair consideration to the material before them they are not required to cast aside views on planning policy formed when seeking election or when acting as councillors.

In these circumstances councillors are not judges but are elected to provide and pursue policies as democratically accountable decision-makers.

It is for the Court to assess whether a decision of Committee members is made actually or apparently with closed minds such that the decision ought not in the public interest to be upheld. The Court is therefore putting itself in the shoes of the fair-minded and informed observer. The importance of appearance is more limited in this than in the judicial context.


Summary of the principles following Court of Appeal in Redcar & Cleveland (2)

Evidence of political affiliation or of the adoption of policies towards a planning proposal will not by itself amount to an appearance of the real possibility of predetermination. Something more is needed which goes to the appearance of a predetermined, closed mind in the decision-making itself.

The meeting fell within the 'purdah period' for exceptional reasons and there was no reason for it not to stand.


BAA Case

21 December 2009 decision of Competition Appeal Tribunal (CAT) found apparent bias in the March 2009 report of the Competition Commission

CAT reviewed caselaw and noted that. . .

Apparent bias is to be distinguished from actual bias: a decision may be affected by apparent bias without the decision-maker being actually biased;

In relation to apparent bias, not only are outward appearances and public perceptions important, but it is also to be borne in mind that a person who in good faith believes that he or she is impartial or is capable of acting impartially, may nevertheless be subconsciously affected by bias;


BAA Case (2)

The test to be applied is an objective one: whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the decision-maker was biased;

The fair-minded and informed observer, who is not to be equated with the complainant, must adopt a balanced approach and will be taken to be a reasonable member of the public, neither unduly complacent or naïve nor unduly cynical or suspicious;

This test is consistent with the requirement under article 6 of the European Convention on Human Rights of an independent and impartial tribunal.


The fair-minded & informed observer

Is neither complacent nor unduly sensitive or suspicious

Is aware of the practicalities of local government.

Does not take it amiss that councillors have previously expressed views on matters which arise for decision.

In the ordinary run of events, the Observer trusts councillors, whatever their pre-existing views, to approach decision making with an open mind

However, if there are additional and unusual circumstances which suggest that councillors may have closed their minds before embarking upon a decision, then he will conclude that there is a real possibility of bias or predetermination.


So … all is clear and straight-forward!

localism bill – theoretical change or a real difference?

Documents

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overlapping power

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company clause

discretionary services

time of decision