A recent Court of Appeal ruling over whether it was right for a council to give planning permission during the ‘purdah’ period has major implications says Nicholas Dobson
A local authority has got away with purdah following a recent decision of the Court of Appeal.
For on 1 July 2008 that court overturned an earlier High Court ruling that Redcar and Cleveland Council (the council) had acted unlawfully when in the run-up to the 2007 local elections it had taken a politically sensitive and controversial decision to grant outline planning permission for a development within a special protection area.
The Local Government Act 1986 and related guidance regulate political publicity. Essentially under present law, local authorities should not be using public money for party political purposes. In this context the period between the notice of election and the election itself (often referred to as the 'Purdah period') is particularly sensitive.
In the lead-up to the 2007 local elections the council had produced a 'Guidance Note on Publicity' which provided that any meetings or decision-making relating to day-to-day council business and not involving controversial local issues should continue to go ahead. The leader of the council's Labour Group (then in opposition) wrote to the monitoring officer expressing grave concerns over the wisdom and propriety of holding the meeting 'to determine such a controversial matter during the election period'.
The meeting nevertheless went ahead, granting the permission in question on 3 April 2007. But on 20 December 2007 Mr. Justice Jackson quashed the decision since he considered there was a real possibility of bias or predetermination.
Bias arises where, on the facts, a fair-minded and informed observer (a role adopted by the court) would conclude that there is a real possibility of bias. If a court finds bias or what appears to be bias then it will quash the decision since this would breach the fundamental requirement that public bodies should (and should be seen to) act fairly. The same goes for predetermination which means entering the decision-making process with a closed mind and a settled determination to vote in a particular way, whatever happens in the meeting. Whilst predetermination will always be unlawful, it is nevertheless legitimate for a councillor to have a 'predisposition' in terms of a likelihood to vote in a particular way; provided that he or she at all times retains an open mind.
The Court of Appeal in deciding there was neither bias, predetermination nor any other legal objection to the council's decision has significantly repainted the backdrop against which these issues are to be considered in the local authority context.
Councillors, the court felt, are not judges and there is a very real distinction between the role of judicial decision-makers and that of democratically accountable members. Lord Justice Rix pointed out that there can be no pretence that such democratically accountable decision-makers are intended to be independent and impartial just as if they were judges. They will have political allegiances and their politics will involve policies known to the electorate and others.
That is not of course to say that councillors can go completely 'off-piste' when taking decisions. They remain subject to the usual battery of public law considerations including the duty to act fairly, to exercise discretion reasonably and properly within the relevant statutory purpose and to adhere to requisite procedures. As part of this councillors must have regard only to material factors and give fair consideration to the representations and other material before them.
However, when considering whether or not there is an appearance of bias or predetermination, a court will judge 'appearance' much less rigorously than in a judicial context. And as for the timing of the decision, the court found on the evidence that the meeting occurred within the purdah period only for exceptional (logistical) reasons so there was no reason for it not to stand.
Clearly, although due proprieties do need to be observed in the run-up to elections and no activities should be undertaken which would improperly interfere with the electoral process, equally the local authority world has to keep turning. Whilst careful judgments do need to be made in politically sensitive cases, the Court of Appeal has nevertheless explicitly recognised the political role of councillors. And this may well make them less vulnerable under these circumstances to a hue and cry of electoral purdah.
Nicholas Dobson is partner at Pinsent Masons
