Question
As the law says in the provisions of the 2011 Localism Act that and I quote “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:
(a) the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and (b) the matter was relevant to the decision.” The government provided an explanation in plain English of what the change in the law means: ‘Under S25 a Member will be able to express strong opinions and even tell people that he or she intends to vote in a particular way, without fear of a challenge based on bias or predetermination.’
This would suggest that the existing Constitution supported by this
Lib Dem Administration, supported by the Conservatives is in fact
illegal. Would you agree that the Administration has acted
illegally and continues to do so by its support to the constitution
that implies that pre determination is
matter that can be referred to the Standards Board.
Minutes:
Question:
As the law says in the provisions of the 2011 Localism Act that and I quote “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:
(a) the decision-maker had previously done anything that directly or indirectly indicated what view the decision-maker took, or would or might take, in relation to a matter, and (b) the matter was relevant to the decision.” The government provided an explanation in plain English of what the change in the law means: ‘Under S25 a Member will be able to express strong opinions and even tell people that he or she intends to vote in a particular way, without fear of a challenge based on bias or predetermination.’
This would suggest that the existing Constitution supported by this
Lib Dem Administration, supported by the Conservatives is in fact
illegal. Would you agree that the Administration has acted
illegally and continues to do so by its support to the constitution
that implies that pre determination is matter that can be referred
to the Standards Board.
Answer:
Firstly, let me say, that I do not agree that the Council has acted illegally. I will try to explain why, it is a complex issue, forgive me if the answer is long.
The WBC Member Code of Conduct, to which I believe you are referring in the final paragraph of your question, is based almost in its entirety on the Local Government Association’s (LGA) Model Code of Conduct and was agreed by full Council on 22 July 2021. You are correct that bias and predetermination are not explicitly mentioned in the Code of Conduct. However, the Code’s provisions on declarations of interest are relevant to predetermination and are about ensuring councillors do not take decisions where they or those close to them stand to lose or gain improperly.
The rules around predetermination are complex which is why the Government at the time (in 2011/12) brought in Section 25 of the Localism Act to clarify matters.
The concept that a councillor, as a decision-maker, should approach a decision with an open mind remains a key principle of public law. The Localism Act does not abolish predetermination as such; instead it provides a protection from challenge by identifying specific behaviour which cannot be regarded as evidence of a closed mind. The use of the words “just because” in the Act limit that protection to things the councillor has done or said to indicate what view he or she took, or would or might take. The purpose of clarifying the law is to ensure councillors can be involved in “campaigning, talking with constituents, or publicly expressing views on local issues” without “fear of being accused of bias or facing legal challenge”. However, the Act does not prevent a challenge based on bias or predetermination arising from other factors.
Evidence of personal bias arising, for example because a member would be personally affected by a decision they are making, would still lead to an unsound decision vulnerable to challenge and could lead to a Member Code of Conduct complaint. Neither does the Localism Act remove the requirement to ensure that decisions are reasonable in the legal sense. This means that, at the time a decision is made, the Council should be able to demonstrate that all relevant matters have been taken into account and that irrelevant considerations have not influenced that decision. Consultation responses, equality impact assessment and in the case of planning, all material considerations, should have been put forward and discussed at a meeting before a decision is taken, whatever prior indication an individual member may have given regarding his or her views on a particular matter. The rules were developed to ensure that councillors came into council discussions – on, for example, planning applications – with an open mind.
Supplementary Question:
In 2011, Wokingham Borough Council appeared in court, and the charge was against the developer, cutting down trees. The judge ruled that Wokingham Borough Council had acted illegally. If that was the case, should not the Council remove or amend the Constitution so that it is compliant with the judge’s order?
Answer:
I am not familiar with that particular case, so I am not able to comment. I will provide you with a written reply.