‘Predetermination’. Sounds like a religious belief. It’s certainly got a lot of power – too much power, the way the word is often interpreted in local government.
‘Predetermination’ seems to be a spiked club which local government officers and/or rival councillors can use to bash elected representatives around the head, metaphorically speaking. If a councillor speaks out on an issue, say a school closure, or a commitment to spend a great deal of public money on a prestige project like Llanelli’s Parc y Scarlets, perhaps, they risk losing all power to vote on it because of ‘predetermination’ – the accusation that they have already made up their mind in advance of a vote in the council chamber.
There is loadsamoney in this for lawyers. (Could it be in their financial interests to make local government as litigious as possible? Surely not!) Predetermination is also advantageous to some council officers, because opinionated councillors who make their life difficult can be gagged.
As an ordinary voter, I want councillors to stand up for their communities, to represent their electors, but predetermination stops that. Or did, before the 2011 Localism Act, which is supposed to privilege free speech and to give councillors the confidence that having a known view on an issue would not lead to a legal finding of ‘predetermination’.
But predetermination is alive and well in Pembrokeshire. The county council’s extraordinary general meeting last Friday, Valentine’s Day, turned into a massacre of good governance, and predetermination was the emblazoned (but false) banner at the head of the charge. Excellent bloggers who have described the shambles include Old Grumpy and Jacob Williams, as well as Mrs Angry of the forensic blog Broken Barnet. Someone in authority, Laurence Harding the Monitoring Officer, it was later reported, stuffed an envelope with useful info for the London barrister engaged by the ‘council’, Tim Kerr (pronounced ‘Car’) QC, and had it placed in the limousine which collected Mr Kerr from Port Talbot railway station (not the nearest station to council HQ in Haverfordwest, but no point having a limmo if it’s not purring down the motorway). The envelope included the names of councillors who had expressed the opinion that council chief executive Bryn Parry-Jones should be suspended while police investigate payments made to him in lieu of employer’s pension contributions, after he had opted out of the Local Government Pension Scheme. The Wales Audit Office said the payments were unlawful, the in-power Independent Plus group disagreed, but in the end back-tracked and opted to do the auditor’s bidding. Much time had been unproductively spent as councillors tried to work out how to vote without being allowed to read the legal advice which Mr Kerr had earlier furnished to their masters, because it was held to contain ‘privileged information’.
The ruling Independent Plus-ers, having at the 59th minute accepted the auditor’s findings, were determined not to retreat any further and that meant rejecting the opposition Labour party’s motion to suspend the chief executive during the police investigations into alleged legal breaches. How to do this? Simple! Predetermination.
The 10 names in Mr Kerr’s envelope belonged to councillors, including Labour group leader Paul Miller, who had publicised their opinion that they wanted the chief executive suspended. But I am ahead of myself. A couple of Independent Plus councillors had already set the scene, by telling their fellows that they should leave the chamber because they had professed the view that the chief must stay in post, so they had predetermined the issue, hadn’t they?
Canoe without a paddle
Now all sorts of nasty things can happen to a councillor who votes when in a state of predetermination. When Mr Kerr’s names were revealed, the Labour opposition was incandescent, realising they had been tied up in a canoe without a paddle somewhere in the middle of Milford Haven with a liquefied natural gas tanker looming over them. No chance yet of Mr Parry-Jones suffering the indignity of suspension.
The role of Mr Kerr in all this seems, er, odd. As an ordinary bystander, I would have thought that a top London QC paid from public funds would be engaged, if at all, to advise the whole council on a vital matter of public service, not to assist one set of councillors to block a motion drafted by the opposition, using the predetermination trap.
But is it really such a trap?
Section 25 of the Localism Act 2011 clarifies predetermination. A guide to the act, published by the Department for Communities and Local Government, says:
“…the Government has used the Localism Act to clarify the rules on ‘predetermination’. These rules were developed to ensure that councillors came to council discussions – on, for example, planning applications – with an open mind. In practice, however, these rules had been interpreted in such a way as to reduce the quality of local debate and stifle valid discussion. In some cases councillors were warned off doing such things as campaigning, talking with constituents, or publicly expressing views on local issues, for fear of being accused of bias or facing legal challenge.
“The Localism Act makes it clear that it is proper for councillors to play an active part in local discussions, and that they should not be liable to legal challenge as a result. This will help them better represent their constituents and enrich local democratic debate. People can elect their councillor confident in the knowledge that they will be able to act on the issues they care about and have campaigned on. “
The Welsh Government issued a similar statement:
Part 1, Chapter 4 Clause 13 clarifies how the common law concept of “predetermination” applies to councillors in England and Wales. The Explanatory Notes to the Bill state: Predetermination occurs where someone has a closed mind, with the effect that they are unable to apply their judgment fully and properly to an issue requiring a decision. Decisions made by councillors later judged to have predetermined views have been quashed. The clause makes it clear that if a councillor has given a view on an issue, this does not show that the councillor has a closed mind on that issue, so that if a councillor has campaigned on an issue or made public statements about their approach to an item of council business, he or she will be able to participate in discussion of that issue in the council and to vote on it if it arises in an item of council business requiring a decision.
Clause 13 applies to members of all councils in England and Wales to which there are direct elections – although it applies both to elected and to co-opted members of those councils, and also to members of National Parks Authorities.
So in both England and Wales, the Localism Act was supposed to tame the ogre of predetermination. If so, why is the ruling group on Pembrokeshire Council still citing it to silence opponents? It seems to boil down to fear of the law.
Fear of the law trumps free speech
James Goudie QC, the barrister in whose chambers Mr Kerr is accommodated, wrote a note called ‘Localism Act 2011: Wales – Territorial Extent and Application’, which says in paragraphs 10-12:
“Section 25 of the Act (prior indications of view on a matter not to amount to determination is intended to do no more than to clarify the common law on unlawful predetermination. (sic) In effect it does this by attempting to highlight the important distinction between a closed mind and an empty mind.
“Although the common law has always regarded a closed mind to be a bad thing, it has never required decision makers to undertake their work with empty minds. Hence the provisions of subsection (2) of Section 25 of the Act, which do no more than to underline specific matters that are not of themselves to be determinative that there has been unlawful predetermination. The limits of subsection (2) are important: the subsection does not require previous statements or actions to be disregarded; rather it provides only that if such statements or actions have occurred, they are not of themselves to be treated as determinative of the case.
“How does Section 25 of the Act compare with the approach that the Courts have taken without Parliamentary assistance? In fact, the comparison is a pretty close one. The general trend of Court decisions in this area has been to recognise that local councillors really are politicians, and that they are required and expected to hold political opinions, particularly on matters of local controversy. The Courts have also recognised the potential for rough and tumble in local politics, and to try where possible to distinguish this from genuine predetermination.” (my emphases)
The tone of Mr Goudie’s note is more barbed than the rather permissive language in the information from the Department for Communities and Local Government and the plain speaking from the Welsh Government. I noticed that Mr Goudie refers to ‘courts’ three times, which may sow fear in the mind of any councillor reading it. If I were counting on the cheery prose from the DCLG, I would feel emboldened enough to address a public meeting, or write a stiff letter to the local paper. But if I was relying on Mr Goudie’s expectation that the courts should “try where possible to distinguish this from genuine predetermination” I would think “how on earth am I going to pay the legal bills?” and would be tempted to proceed with excessive caution.
So despite the Localism Act, predetermination is still a legal snake pit and evidently still a lucrative business area for legal professionals. The intention in Section 25 of the Localism Act to strengthen democracy was easily subverted in Pembrokeshire last week. Too few councillors have confidence that Section 25 would protect them.
If only a great public campaign for the application of Section 25 could materialise, but by and large the public has little interest in legal technicalities. These three stories in the Western Telegraph were, this morning, all more popular than the paper’s report of Friday’s dreadful meeting: ‘World War II mine found on beach’, ‘Warm tributes following death of Pembrokeshire Lottery founder’ and ‘Theft of 88-year-old volunteer’s handbag ‘shocking’’. We find portents of danger and the misfortunes and tragedies befalling individuals far more interesting than legal abstractions, which is good news for lawyers.
For reference, the following is Section 25 of the Localism Act.
Prior indications of view of a matter not to amount to predetermination etc
(1)Subsection (2) applies if—
(a)as a result of an allegation of bias or predetermination, or otherwise, there is an issue about the validity of a decision of a relevant authority, and
(b)it is relevant to that issue whether the decision-maker, or any of the decision-makers, had or appeared to have had a closed mind (to any extent) when making the decision.
(2)A decision-maker is not to be taken to have had, or to have appeared to have had, a closed mind when making the 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.
(3)Subsection (2) applies in relation to a decision-maker only if that decision-maker—
(a)is a member (whether elected or not) of the relevant authority, or
(b)is a co-opted member of that authority.
(4)In this section—
- “co-opted member”, in relation to a relevant authority, means a person who is not a member of the authority but who—
is a member of any committee or sub-committee of the authority, or
is a member of, and represents the authority on, any joint committee or joint sub-committee of the authority,
and who is entitled to vote on any question which falls to be decided at any meeting of the committee or sub-committee;
- “decision”, in relation to a relevant authority, means a decision made in discharging functions of the authority, functions of the authority’s executive, functions of a committee of the authority or functions of an officer of the authority (including decisions made in the discharge of any of those functions otherwise than by the person to whom the function was originally given);
- “elected mayor” has the meaning given by section 9H or 39 of the Local Government Act 2000;
in relation to the Greater London Authority, means the Mayor of London or a London Assembly member, and
in relation to a county council, district council, county borough council or London borough council, includes an elected mayor of the council;
- “relevant authority” means—
a county council,
a district council,
a county borough council,
a London borough council,
the Common Council of the City of London,
the Greater London Authority,
a National Park authority,
the Broads Authority,
the Council of the Isles of Scilly,
a parish council, or
a community council.
(5)This section applies only to decisions made after this section comes into force, but the reference in subsection (2)(a) to anything previously done includes things done before this section comes into force.
Pat Dodd Racher