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Tuesday, January 04, 2011

Doing away with pre-determination

This morning's Daily Telegraph reports that the Government's Localism Bill will contain measures so that local councillors will no longer be prevented from taking crucial decisions because they have already expressed an opinion on whether a controversial project should go ahead:

It will mean an end to councillors who have been elected to halt a closure or development being barred from sitting in judgement.

Under current Town Hall “pre-determination” rules, councillors are unable to vote on matters if they have expressed an opinion. But last night, Grant Shapps, the local government minister, wrote to all English councils and told them that those rules were being scrapped.

He said: “It is ridiculous that a community can vote for someone standing on a particular issue, only for that person to be barred from talking about it once in office. Councillors must be given the freedom to properly represent the views of their constituents.

“The Localism Bill will do just that. It will end the nonsense surrounding predetermination rules that have left councillors up and down the country confused and concerned about whether voicing an opinion on an issue of local importance will lead to charges of bias.

“We are placing councillors centre stage in their communities with more clout than ever before to get things done for the people they serve.”

This is of course, very welcome, though it will be interesting to see how it works in practice, especially with regards to planning. Most of the examples given in the article are not planning matters and actually amount to a misinterpretation of the rules by Council legal officers. In these cases the Councillors concerned should have ignored the advice and gone ahead and voted.

The one thing that puzzles me is why Grant Shapps has only written to English Councils. As far as I am aware this is not a devolved matter with regards to Wales and should apply here as well. I may have to ask some questions of the Welsh Local Government Minister.
It is definitely a devloved issue Peter - pretty much all Local Government Matters are. That is why we have the seperate Ombudsman and Code of Conduct in Wales, rather than the English Standards Board. Unfortunately it will take a change of Government in Wales too for this ridiculous regime to end here too.
I am not sure about that. There are still some significant areas of local government policy that is not devolved such as voting systems, but more importantly this reform is wider than local government. It is about a quasi-judicial process, especially in planning and licensing terms and that is why I have expressed doubts about how it will apply in practice. I will ask the Minister and see what he says.
Very interesting development. Keep us posted on the Minister's response Peter.
My view is that on planning issues in particular because of the fact that councillors are acting in a quasi judicial position in dealing with private property rights then predetermination would still apply. Councillors would be expected to take a decision based on planning policy and the advice of officers. A candidate who was elected, for example, by campaigning against a housing development and then proceeded as a member of a planning committee to vote against the officer's recommendation to grant planning permission could find themselves in a very difficult position.
I tend to agree Jeff, that is why I have been so cautious in my comments on it.
I had to trawl through Local Government Acts two years ago (in connection with a community council matter) and my recollection is that their provisions applied to all England & Wales apart from certain nominated sections. So it would appear that unless Wales is specifically exempted, any new local government legislation would apply here also.

I hasten to add that I am not a lawyer.
"A candidate who was elected, for example, by campaigning against a housing development and then proceeded as a member of a planning committee to vote against the officer's recommendation to grant planning permission could find themselves in a very difficult position."

The case of R (ex parte Lewis) -v-
Persimmon Homes (Teeside)Ltd would suggest otherwise - and it says there's nothing wrong with grouping on a planning decision. This case never seems to get a look in with legal offciers because it prevents them from controlling councillors


"Quasi-judicial" - something that councillors are told about their role that makes them feel important.

The rules don't prevent predetermination - only prevent such predetermination being made public
There is also case law involving Lord Wolf and Derbyshire CC which suggests that there is nothing wrong with a councillor sticking to a group decision with regard to planning. In this case the Labour Group on Derbyshire CC agreed to oppose a planning application being decided by a district authority. Some of the group members were also councillors on the district council and opposed the application. The trouble with all of this is that it often depends on the judge. Some judges can take the view that all politicians are by the nature of politics prejudice when it comes to decision making. Others might take the view that like Caesar's wife a politician taking a decision on another person's property rights should be above suspicion. Unfortunately you are not going to find out where the judge is coming from until your decision is challenged.What used to concern me when I was a councillor was the quality of some of the professional advice we were given by individuals who were not able to hack it in the tough world of the private sector.Too often highly paid professionals couldn't even give you an answer and we had to get counsel's opinion.
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