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Bias, Predetermination and the Code

Standards for England's Freda Sharkey and Simon Bird QC, Judge of the First Tier Tribunal, look at how standards committees should consider perceived bias and predetermination

Standards for England (SfE) was established by the Local Government Act 2000 and works with local authorities, their monitoring officers and standards committees to promote high standards of conduct in local government.

Through its Ethical Standards Officers (ESOs), it investigates potential breaches of the Local Authorities (Model Code of Conduct) Order 2007 (the Code), which members and councillors must abide by. SfE also provide support and guidance on the Code and monitor the performance of local authorities in their assessment of complaints.

This article, which examines the relationship between bias, predetermination and the Code, was developed from a workshop delivered at the 2009 Annual Assembly of Standards Committees.

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Predetermination is a more accurate term than ‘bias’, to describe a state of mind which is capable of breaching both the law and the Code. This is not to be confused with predisposition where a member or councillor holds a view in favour of or against an issue - a planning application, for example - but has an open mind to the merits of an argument before making the final decision at the council meeting. This includes having formed a preliminary view about how they will vote before they attend the meeting, and/or expressing that view publicly.

The courts recognise two types of predetermination – actual and apparent:

Actual predetermination is when a person has closed their mind to all considerations other than an already held view.

Apparent predetermination is where a fair-minded and well-informed observer, looking objectively at all circumstances, considers that there is a real risk that one or more of the decision-makers has refused even to consider a relevant argument or would refuse to consider a new argument.

Recent case law has provided some clarity on how to establish whether predetermination may have occurred, through the use of a two-stage test:

  • Stage One – all of the circumstances which have a bearing on the suggestion that the decision was undermined by actual or apparent predetermination must be established.
  • Stage two – the questions to be asked are:
    (a) was there actual predetermination or
    (b) were the circumstances such that would lead a fair-minded and informed observer to conclude that there was ‘real risk’ that one of the decision-makers had predetermined the outcome?

It is important to note that apparent predetermination is to be assessed in regard to all of the circumstances which are apparent upon investigation. This extends beyond the circumstances available to the ‘hypothetical observer.’

This could include information on any other relevant facts affecting the decision, for instance council procedures. It does not include evidence from the member or councillor concerned as to their state of mind, or evidence from the complainant as to why they believed the subject member’s mind was closed. The test objectively looks at what view the facts give rise to.

The courts have decided that the fair-minded and informed observer has access to all the facts, is neither complacent, unduly sensitive nor suspicious when looking at the facts, is able to decide between the relevant and irrelevant and on the weight to be given to the facts, and is aware of the practicalities of local government.

The courts have accepted that these practicalities mean that the fair-minded and informed observer accepts that:

(a) Manifesto commitments and policy statements which are consistent with a preparedness to consider and weigh relevant factors when reaching the final decision, are examples of legitimate predisposition, not predetermination.

(b) The fact that the member concerned has received relevant training and has agreed to be bound by a Code of Conduct is a consideration to which some weight can properly be attached when determining an issue of apparent predetermination.

(c) Previously expressed views on matters which arise for decision in the ordinary run of events are routine and members and councillors can be trusted, whatever their previously expressed views, to approach decision-making with an open mind.

(d) To suspect predetermination because all members of a single political group have voted for it is an unwarranted interference with the democratic process.

(e) Members and councillors are likely to have and are entitled to have, a disposition in favour of particular decisions: an open mind is not an empty mind but it is ajar.
What has become evident is that the threshold, in the context of administrative decisions, on the test of apparent predetermination, is an extremely difficult test to satisfy. Unless there is positive evidence that there was indeed a closed mind, prior observations or apparent favouring of a particular decision is unlikely to be sufficient to establish predetermination.

The Adjudication Panel for England (now The First-tier Tribunal (Local Government Standards in England)), in case reference 0352 has examined the relationship between the Code and predetermination and gave an indication that where such issues arise there is a potential breach of the part of the Code dealing with disrepute. The outcome is likely to depend on the individual circumstances of a case and any other Code issues and breaches. This is because a member or councillor who renders the decision of a council unlawful due to predetermination could reasonably be regarded as bringing that authority or his office into disrepute.

An important issue for members and councillors is that by and large predetermination (should it be found to exist) will not amount to a personal or prejudicial interest under the Code. Therefore there is no specific requirement to declare an interest and leave the room where a meeting is taking place under paragraphs 8 to 10 of the Code. Members and councillors may however find themselves the subject of a complaint under paragraph 5 of the Code, dealing with disrepute. This paragraph of the Code has no provision for declaring interests or leaving meetings.

This article was developed from material provided by Freda Sharkey, Head of Professional Standards at Standards for England, and Simon Bird QC, Judge of the First Tier Tribunal (Local Government Standards in England), and presented to a workshop delivered at the 2009 Annual Assembly of Standards Committees.

For further information, please see SfE’s guide to predetermination and bias here. A fuller examination of these issues can also be found in its published Assembly material here.

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