Into the void

The government's announcement that it is to abolish both the Standards Board and the predetermination rule has been welcomed in some quarters, but leaves councillors and lawyers in the dark about how they will be replaced, writes Mark Smulian

“Stunell wins praise for ending council red tape”, a self-congratulatory press release from the Department for Communities and Local Government stated, leaving lawyers scratching their heads over the consequences of Liberal Democrat minister Andrew Stunell’s announcement of the impeding demise of both the Standards Board for England and the ‘predetermination’ rule.

He said councillors viewed the board as “a burden and a threat”, and complained that it had handled 1,000 complaints last year, at an average cost of £7,800 each, and so had failed to earn its keep.

But Stunell did not say whether anything would replace it. Nor did he  mention the councillors’ code of conduct, which the board enforces and which, unless it too is abolished, will need to be enforced by something else.
Likewise, Stunell signalled the end of the predetermination rule without saying if anything else would prevent bias in decision-making.

Predetermination derives from the common law concept of an unbiased hearing and prevents councillors from voting on planning applications where they have previously stated a firm intention to oppose.

This has left a large grey area, in which experienced councillors can easily signal their real feelings to constituents without committing themselves irrevocably, usually by saying something like “I am minded to oppose this but wish to hear both sides fully first”.

Grey areas or not, many councillors loathe the predetermination rule, seeing it as a restriction on their ability to represent constituents and deliver on campaign promises. Stunell said: “It is absolutely the case that it is wrong for local representatives to be barred from taking part in decisions, even if they have a clear predisposed view.

“The Government certainly understand the concern that the issue causes to councillors, and if necessary, we will legislate to ensure that councillors are not prevented from speaking up on issues on which they have campaigned.”

Where to go from here?  Ministers will no doubt eventually fill the policy vacuum, but with what?

Bevan Brittan partner Peter Keith-Lucas often trains councillors and says that while most want to change the Standards Board, when asked if they want the code of conduct torn up, they answer ‘no’.

“What would go in its place?" he asks. "Before the code we had declarations of pecuniary interests, which no-one liked and involved a criminal offence, and surcharging, and I see no appetite to go back to that.”

Keith-Lucas says that despite the board having become a strategic regulator, and so no longer concerning itself with hundreds of trivial disputes each year, “it has a lot of baggage and may cost a lot, but if you have a code of conduct someone has to oversee it”.

“My bet would be that, as in Wales, the Local Government Ombudsman will be given the role of overseeing the code.”

Weightmans partner Graham Creer says that without the boar, local standards committees and monitoring officers would have to somehow take on the complex cases and appeals that the board now handles.

“If that happens it will mean more work for local authorities,” he says. “I think the board and the code have been extremely effective in improving behaviour, though whether it has been affordable is not something I’d like to comment on.”

Mirza Ahmed, president of the Association of Council Secretaries and Solicitors, is concerned about the particularly complex cases and appeals from local standards committee decisions. “The board can be abolished but the effect depends on whether they abolish the code of conduct too,” he says. “Local committees handle the vast majority of cases anyway and the issue is what happens to the serious cases. One could see appeals heard locally by an appeals committee of people who were not involved in the original hearing, and anything further arising from that would be a matter for judicial review.”

The future of any rule on predetermination is equally opaque. Ahmed, who is also corporate director of governance at Birmingham City Council, says: “The devil will be in the detail of what would replace it.” He points out that while parliament could abolish a part of common law, doing so would go far beyond planning in its implications.

Keith-Lucas says predetermination means “essentially that you should not make a final decision until you have got all the information you need, which in the case of planning means being at the planning committee meeting”.
He says councillors should know how to represent constituents while staying within the rule, and that the most restrictive court decisions, which stoked resentment of the rule, have anyway been overturned.

“The Court of Appeal made some thoroughly sensible decisions,” he says. “In Island Farm v Bridgend County Borough Council it held that councillors live in the real world and will discuss matters with constituents and in Persimmon Homes v Redcar & Cleveland Borough Council, that a councillor cannot be expected to be like a judge who comes into court with a clean slate and hears only the evidence presented”.

Creer agrees that such rulings mean only the most extreme statements would now count as predetermination. “The courts have over the past few years showed increased flexibility on what councillors have said and rarely view it as predetermination, and this [abolition] is solving a problem that no longer really exists”, he says.

He explains: “In a lot of cases 10 years ago the courts were quite fierce on predetermination and local authorities thought it looked very difficult for any councillor to take part in a decision unless they had had nothing to do with it previously.

“The most recent cases though have changed that unless there is blatant bias. Only if a councillor has said ‘I will go to a meeting and no matter what I hear I shall vote in the way I have already made clear’ would it be predetermination. Experienced councillors should be able to make their views clear to constituents without crossing the line into predetermination.”

Whether the code survives, who polices it, and on what grounds bias could be proved in a planning decision are all issues over which monitoring officers will hope to rapidly gain clarity from the government.

Mark Smulian is a freelance journalist