In Kelton v Wiltshire Council [2015] EWHC 2853 (Admin) three challenges were made to a grant of planning permission on the ground of bias/disqualification.  Two challenges failed.  The third succeeded.  The planning permission was for a scheme of up to 35 custom built residential dwellings, including 9 affordable homes.  At issue was the participation of one of the councillors on the Council ‘s planning committee, Councillor Magnus Macdonald, whose vote carried the decision in favour of granting the outline planning permission. It is alleged that he was disqualified from participating in the planning committee on this matter, because he is a director of Selwood Housing Association (“Selwood”), a not for profit association, which has had an interest in the affordable housing part of the development. Cllr. Macdonald receives, as director, some £3000 per annum.

The first challenge was based on the rule of automatic disqualification for financial interest.  The argument was that Cllr. Macdonald was automatically disqualified as a result of his directorship of Selwood.  Selwood was involved in the application and had an interest in its fate given that the applicants for planning permission had identified it as, effectively, their affordable housing partner.

Cranston J held that Cllr. Macdonald had no direct pecuniary or proprietary interest in the planning application so as to be automatically disqualified from participating in the decision. The decision of the committee in the present case did not lead to Cllr. Macdonald obtaining any benefit. There are too many contingencies between the committee’s decision and any benefit to him as a director of Selwood for the rule to have any purchase.  Here Selwood was not a party to the decision. Cllr. Macdonald could not be regarded as promoting the cause of affordable housing through his voting on planning permission on this application.

The second challenge was statutory disqualification as a result of a disclosable pecuniary interest, contrary to  Section 31 of the Localism Act 2011 and the Schedule to the Relevant Authorities (Disclosable Pecuniary Interests) Regulations 2012.

The argument was that, under Section 31, Cllr. Macdonald had a disclosable pecuniary interest in the matter before the planning committee. He was aware that Selwood stood to benefit directly from the grant of permission and accordingly was statutorily disqualified from participation in the meeting and should have withdrawn.

In the Judge’s view, however, Cllr.Macdonald had no disclosable pecuniary interest in the matter to be considered. Selwood was not the applicant for planning permission and at the point of the decision had no contract with the developers. It may have built up goodwill with its advice to them over a period, but at the time of the grant of planning permission the affordable housing part of the development was yet to be tendered. In the result, Cllr. Macdonald was not disqualified under Section 31.

Apparent bias was the third challenge.  Cranston J’s view was that Cllr. Macdonald’s participation in the decision to grant planning permission gave rise to an appearance of potential bias. It was plainly in Selwood’s interests and Cllr. Macdonald’s, as director, for the application to be approved. The reasonable and fair-minded observer, having the background facts, would have been aware that Selwood had committed time, resources and expertise to working with the developers over the design of the affordable housing part of the scheme. It was highly unlikely that Selwood would have gone to all the trouble it did unless it was seriously interested in delivering the affordable housing part of the scheme and had reason to believe that it stood a good chance of winning the tender once planning permission was granted. It had built up goodwill with the developers. The evident reality of the position then was that although it was not a done deal, Selwood was the front runner to deliver the affordable housing part of the scheme and would, barring something unforeseen, be appointed to do so in due course.

One element of the attack on Cllr. Macdonald’s participation was that he participated in a decision which furthered the cause of affordable housing, which as a member of Selwood he obviously supported, but that was only part of it.  The important distinction is that as a director of Selwood he also had a private interest.  In Cranston J’s view, Cllr. Macdonald’s directorship of Selwood will not be an issue in the great majority of housing applications likely to come before the committee, even those with an affordable housing element.  The position in this case was quite different.  Selwood, with Cllr. Macdonald as a director was not simply an affordable housing provider.  Here it was the only provider which had been willing to give assistance on the scheme, had expressed a clear interest in delivering it, had been named by the applicants as their potential partner, and had written in support and attended the planning committee meeting when it was considered.  In other words, its position was superior to that of any other interested providers of affordable housing because of its previous involvement and its prospects of winning the contract when the affordable housing part was tendered.  Because of that, Cllr. Macdonald’s private interests were engaged, as a director of Selwood, not just his interests in the cause of affordable housing. In all these circumstances it was wrong for Cllr. Macdonald to have participated in the meeting.

In R (Nicholson) v Allerdale BC [2015] EWHC 2510 (Admin) Holgate J emphasized relevant principles upon which the High Court will approach a challenge to a decision taken by a local planning authority involving criticism of the officer’s report:-

(i) In the absence of contrary evidence, it is a reasonable inference that members of the planning committee follow the reasoning of the officer’s report, particularly where a recommendation is accepted;

(ii) The officer’s report must be read as a whole and fairly, without being subjected to the kind of examination which may be applied to the interpretation of a statute or a contract;

(iii) Whereas the issue of whether a consideration is relevant is a matter of law, the weight to be given to a material consideration is a matter of planning judgment, which is a matter for the planning committee, not the court;

(iv) An application for judicial review based on criticisms of the planning officer’s report will not normally begin to merit consideration unless the overall effect of the report significantly misleads the committee about material matters which thereafter are left uncorrected at the meeting of the planning committee before the relevant decision is taken;

(v) In construing reports, it has to be borne in mind that they are addressed to a knowledgeable readership, including council members who, by virtue of that membership, may be expected to have a substantial local and background knowledge;

(vi) The purpose of an officer’s report is not to decide the issue, but to inform the members of the relevant considerations relating to the application. It is not addressed to the world at large, but to council members who, by virtue of that membership, may be expected to have substantial local and background knowledge. There would be no point in a planning officer’s report setting out in great detail background material, for example, in respect of local topography development plan policies or matters of planning history if the members were only too familiar with that material. Part of a planning officer’s expert function in reporting to the committee must be to make an assessment of how much information needs to be included in his or her report in order to avoid burdening a busy committee with excessive and unnecessary detail;

(vii) Democratically elected bodies go about their decision-making in a different way from courts. They have professional advisers who investigate and report to them. Those reports obviously have to be clear and full enough to enable them to understand the issues and make up their minds within the limits that the law allows them. But the courts should not impose too demanding a standard upon such reports, for otherwise their whole purpose would be defeated.

There was also an irrationality challenge.  Holgate J reiterated that an application for judicial review is not an opportunity for a review of the planning merits of the Council’s decision. Although an allegation that such a decision was perverse, or irrational, lies within the scope of proceedings under CPR Part 54, the Court must be astute to ensure that such challenges are not used as a cloak for a rerun of the arguments on the planning merits.  In any case where an expert tribunal is the fact finding body, as in the case of a planning committee, the threshold for Wednesbury unreasonableness is a difficult obstacle for a Claimant to surmount, which is greatly increased in most planning cases by the need for the decision-maker to determine not simply questions of fact, but a series of planning judgments. Since a significant element of judgment is involved, there will usually be scope for a fairly broad range of possible views, none of which could be categorised as unreasonable. Moreover, the decision may also be based upon a site inspection, which may be of critical importance. Against this background, a Claimant alleging that a decision-maker has reached a Wednesbury unreasonable conclusion on matters of planning judgment faces a particularly daunting task.  On the other hand, irrationality challenges are not confined to the relatively rare example of a “decision which simply defies comprehension”, but also include a decision which proceeds from flawed logic.

On policies, Holgate J reiterated that the correct interpretation of planning policy is a question of law to be determined by the Courts.  But, notwithstanding its legal status and effects, a development plan is not analogous to a statute or a contract and therefore its policies must not be construed as if they were statutory or contractual provisions. That is because development plans often contain broad statements of policy, and policies of that nature may be difficult to reconcile if construed strictly. In addition, the language used to express planning policy may depend upon the exercise of judgment by the decision-maker when applied to a given set of facts. The exercise of judgment by a planning authority when applying a policy is legally distinct from the construction of that policy. Such matters of judgment fall within the jurisdiction of the planning authority and may only be challenged in the courts if irrational or perverse.   When determining the extent to which a proposal conforms with a local plan, the correct focus is on the plan’s detailed policies. The supporting text consists of descriptive and explanatory material and/or reasoned justification in respect of the policies. That text is relevant to the interpretation of the policy with which it is concerned, but it does not itself constitute policy or form part of policy. Because the supporting text does not have the force of policy it cannot trump or override the policy to which it relates. So, for example, a criterion which is to be found in supporting text but not in a policy of the plan, could not affect the decision as to whether a proposal accords with the development plan.

The Cities and Local Government Devolution Bill, which is having its Second Reading in the House of Lords on 8 June 2015, in relation to combined authorities in England under Part 6 of the Local Democracy, Economic Development and Construction Act 2009, will enable secondary legislation to provide for an elected mayor for a combined authority’s area who would exercise specified functions individually and chair the authority; provide for the possibility for the mayor additionally to undertake the functions of Police and Crime Commissioner for the combined authority area (in place of the Police and Crime Commissioner); where a mayor is to have Police and Crime Commissioner functions, cancel Police and Crime Commissioner elections that would otherwise have taken place and allow the current Police and Crime Commissioner’s term of office to be extended until the mayor is in place; remove the current statutory limitation on functions that can be conferred on a combined authority (currently economic development, regeneration, and transport); require combined authorities to establish overview and scrutiny committees; and provide for GPOC under the Localism Act 2011 to be extended to combined authorities.  The Bill also provides for the Secretary of State to make regulations making provisions about local authorities’ governance arrangements, their constitution and membership and structural and boundary arrangements.  For these purposes a local authority is a county council in England, a district council or a London Borough.  Governance arrangements mean the arrangements an authority operates for taking decisions – executive arrangements, the committee system, or prescribed arrangements as provided for under Part 1A of the Local Government Act 2000.  Such regulations are to be made only with the consent of the local authorities to which the regulations apply.

In R (Morris) v Rhondda Cynon Taff CBC [2015] EWHC 1403 (Admin) the Council proposed that its funding of nursery education should change. Before deciding to do so it chose to embark upon a consultation exercise. A challenge to the adequacy of the consultation process failed.

At paragraph 62, Patterson J stated:-

“62. In my judgment the case of Moseley , as has been said, generally states the previous principles on consultation. That means that once a consultation has been embarked upon for it to be fair it has to:

i) let those with a potential interest in the subject matter know clearly what the proposal of the public authority is;

ii) explain why the proposal is under positive consideration;

iii) give the consultees sufficient information so that they can make an informed response to the proposal under consideration;

iv) allow sufficient time for those consultees to be able to submit their informed response;

v) conscientiously consider the product of the consultation and take that into account when reaching and taking the final decision.”

Patterson J added:-

“63. … As part of presenting information in a clear way, the decision maker may present his preferred option. Part of the available information to be presented to the public may be alternative options for change. What is an alternative option will depend on the factual and context specific circumstances of the consultation in question.”

65. The case of L & P … confirms the political nature of budgetary considerations and how a Court has to be cautious about trespassing over the line which is the boundary of a democratically made decision. …”

Patterson J further said:-

“68. After the decision in Moseley it is clear that the issue of fairness in a consultation exercise is very context specific. …”

“75. In short, there is no inviolable rule established by Moseley that alternatives must be consulted upon in every consultation exercise. Sometimes fairness may require it to be the case so that consultees can make sense of the consultation exercise. When that is the case the alternatives will have to be realistic alternatives. What is realistic will always depend upon the particular circumstances of the consultation to be carried out.”

In Anderson v Chesterfield High School UKEAT/0206/14/MC, Mr Anderson is currently the elected Mayor of Liverpool.  This is an executive post and regarded as full-time.  The position carries with it an annual allowance of almost £80,000.  He had previously held positions as Councillor of Liverpool City Council, the Leader of the opposition on the Council and ultimately at the time of his election as Mayor, Leader of the Council, which was in effect a full-time post with an annual allowance of approximately £50,000. 

Prior to his election as Mayor, he was employed by a neighbouring Local Authority, Sefton Metropolitan Borough Council (“Sefton”) at Chesterfield High School. Once elected Leader of Liverpool City Council he had ceased to work at the School. 

Sefton agreed that he should continue as an employee. This was on the basis that he would be paid the maximum allowed as paid leave to enable employees to hold public office by Section 10 of the Local Government and Housing Act 1989 (208 hours per annum).  His post was held open.   Sefton also continued to pay pension contributions.

This arrangement continued until the School became an Academy.  His employment then transferred by a TUPE transfer to the Respondent, now independent of Sefton.

The Respondent was concerned that the arrangement was “inequitable”,  principally because the Respondent was paying some £4,500 per annum to the Claimant but the pupils at the school received no benefit.  The Respondent accordingly terminated the agreement.  The Claimant claimed, inter alia that he had been dismissed unfairly.

The ET found that he had remained an employee and had been dismissed for “some other substantial reason”, a potentially fair reason.  However, the dismissal procedure was unfair, and his claim for unfair dismissal was upheld.  He was entitled only to a basic award subject to a Polkey deduction and contributory fault.

Mr Anderson appealed.  The EAT on 14 April 2015 upheld the decision of the ET on the basis that the deductions were justified on the facts found by the ET and that the Respondent had acted reasonably in taking the view that a continuation of an arrangement whereby Mr Anderson was paid (albeit a modest amount) by a publicly funded school, without having to provide any services, for an indefinite period was of no value to the Respondent and might lead to significant criticism.  It was entitled reasonably to regard the arrangement as inequitable and unsustainable and to terminate Mr Anderson’s  employment.

His Honour Judge Serota QC said:-

“13. No concern appears to have been given as to what the public perception might be of the expenditure of public money to a full-time politician who was not expected or required to provide any services in return.”

“57. In my opinion the principal reason for the “dismissal” was obvious. The realisation that a continuation of an arrangement whereby the Claimant, an elected official of a neighbouring Local Authority, was paid (albeit a modest amount) by a publicly funded school without having to provide any services for an indefinite period was considered to be of no value to the Respondent and might lead to significant criticism if the arrangement became public.  The Respondent was reasonably entitled to regard the arrangement as inequitable and unsustainable.  It was also the case that the Respondent considered that the arrangement (including the indefinite holding open of the Claimant’s post) led to some instability within the school.

58.       The Employment Tribunal’s conclusions on the Polkey deduction and deduction for contribution were conclusions to which it was entitled to come.  Its conclusion that the Claimant was party to a misuse of public funds was certainly within the range of reasonable responses of a reasonable employer.  Further, the Claimant’s conduct can reasonably be regarded as culpable or blameworthy.  The finding that the Claimant would have been dismissed in any event had a “fair” dismissal procedure been followed is unassailable as a finding of fact that the Employment Tribunal was entitled to make.  I am unable to see how consultation would have made any difference.  …

59.      It seems to me as though the Claimant has simply not given sufficient attention as to how the arrangement he made with Sefton and so continued with the Respondent might look to outsiders.  The Claimant was entitled to receive almost £80,000 per annum from Liverpool for his role as elected Mayor, yet also procured a payment (albeit modest) from public funds for which he provided, and was not expected to provide, any service.  It was, more likely, considered to be a reverse form for a zero hours contract, whereby the Respondent was bound to make payment of salary but the Claimant was not bound to provide any services.  It is certainly fairly arguable that this arrangement may strike members of the public as constituting a misapplication of public monies. …

60.      What most people would consider the Respondent’s desire to extricate itself from this arrangement, which could have been a public relations disaster for the school, would seem to me to be a clear example of SOSR for ending the employment relationship with the Claimant.  I am satisfied that this is the conclusion to which the Employment Tribunal came and to which it was clearly entitled to come.  In the circumstances, the appeal is dismissed.”

R (Silus Investements) v Hounslow LBC (2015) EWHC 358 (Admin) the Claimant’s grounds of challenge included breach of a legitimate expectation of consultation.  The Council had represented that there would be consultation on the proposed designation of a Conservation Area.  Therefore it had of course to comply with the minimum standards of a lawful consultation procedure, as expressed in Gunning/Coughlan, and recently approved by the Supreme Court in Moseley. Lang J found that those standards had not been met.  First, the consultation notice was not accompanied by “sufficient reasons for particular proposals to give intelligent consideration and an intelligent response”.  The summary and details given were “too brief and superficial to provide for a meaningful consultation”: para 54.  Second, a 7 day consultation period was too short for consultation to work fairly or effectively, para 55.  Third, the product of consultation was not “conscientiously taken into account”, because the decision was made before all the consultation responses were received: para 57.  There had been unfairness.

R (T) v Trafford MBC [2015] EWHC 369 (Admin) was primarily concerned with whether the Council was under a common law duty to include alternative options in its consultation on proposed budget savings.  Stewart J held that the Council was under no such duty.  On the proper interpretation of Moseley in the Supreme Court it is only sometimes that fairness will require consultation upon arguable yet discarded alternative options.  Moseley does not cast doubt on what was said by the Court of Appeal in Rusal. The Council were entitled “lawfully to present their preferred option and to consult on the best way to achieve that”: paragraph 37(vii).  The point in Moseley was that the consultation document was misleading.  If an authority does not consult on rejected options, and presents only a preferred option for consultation, that is not misleading.  It was legitimate to focus the consultation on savings in services when circumstances dictated that it was not realistic to increase council tax or use reserves: paragraph 38.

Budget cuts and consultation featured yet again in R (L & P) v Warwickshire County Council [2015] EWHC 203 (Admin), in which Judgment was given by Mostyn J on 5 February 2015.  The primary ground of challenge alleged that the Council had acted unlawfully in not consulting (at common law) on its savings target for its Integrated Disability Service (“IDS”) for children.  However, this, along with other savings targets, had been identified in February 2013.  The Judge, applying Nash v Barnet LBC [2013] EWCA (Civ) 1004, (2013) PTSR 1457, held that grounds for challenge “first arose” in February 2013 and the challenge therefore was far out of time.

The Judge went on, however, to consider the ground on its merits.  He began by identifying a constitutional issue, which he put this way:

“The decision to set a local authority budget at a certain level and to make reductions in certain areas must surely be the very quintessence of a political decision.  A challenge to a budget proposal should normally be made through elected representative or, if dissatisfied with what they are doing, by seeking to unseat them at an election. That is what local democracy is all about. The main challenge here does to my mind raise a serious constitutional question.”

Mostyn J went on “whole-heartedly” to agree with the statement of Collins J in the Lincolnshire library closure case, Draper v Lincolnshire County Council (2014) EWHC 2388 (Admin), at para 53:

“The overwhelming objection to the decision does not in itself mean that it is unlawful. The decision to make the £2 million cuts was a political one which was not and cannot be challenged in the courts.  It can of course when it comes to electing councillors. The need for cuts will inevitably produce hard decisions for many, but that does not make them unlawful.”

Mostyn J added, however, a caveat:

“That does not mean of course that every political decision made by an elected county council is immune from challenge in judicial review proceedings. It does mean however that I must be especially careful that I do not cross the line into the political arena and get lured into making a judgment about the merits of a democratic decision which imposes a cut.”

The Judge duly recognized that in some circumstances there is no statutory obligation to consult but the common law nonetheless imposes one, in order to satisfy the requirements of procedural fairness, but said Mostyn J:

“Plainly, the circumstances where the judges will intervene to tell a decision maker, who may very well be an elected representative, how procedurally to make his or her decision will be very circumscribed.”

Turning to the three circumstances where the common law will impose a duty to consult, (i) where there has been a promise to consult, (ii) where there has been an established practice of consultation, or (iii) where, in exceptional cases, a failure to consult would lead to conspicuous unfairness, the Judge observed that for each of (i) and (ii) “the duty must be predictable and finite in scope”, and that as for (iii) not only must the case be “exceptional” but the unfairness must be of a very high level”, it must be “conspicuous”.  Reverting to the constitutional issue, Mostyn J added that:

“In each instance where the decision not to consult has been made by a democratically elected representative the court should be very slow to intervene, for obvious constitutional reasons.”

Mostyn J having set out the principles to be applied in working out whether a duty to consult arises or not, the next question would be how it should be carried out.  Obviously it must be carried out fairly.  The Judge referred to the authorities, including at Court of Appeal level, that consultation will only be so unfair as to be unlawful when something has gone “clearly and radically wrong”, a “strong test”, a “high test”.  Mostyn J ruled that this remained the test post-Moseley in the Supreme Court, saying that his view was supported by R (Robson) v Salford City Council (2015) EWCA (Civ 6. 

The primary ground of challenge failed because it was not a category (i) case, as none of the promises of consultation promised consultation on whether in principle the cuts should be made, and all of the promises made were to consult, which was done, about the ways and means of achieving the targeted savings; nor was it a category (ii) case; and the question was whether it was a category (iii) case, which would be “very rare”. Mostyn J stated that the Warwickshire case did not come “remotely close” to “conspicuous unfairness amounting to an abuse of power”.  He said:

“This case was an example of a budget being regularly and constitutionally set by a local authority in the present time of austerity.  All democratic procedures and safeguards were followed. It simply cannot be said that to make that decision without prior consultation was so conspicuously unfair as to amount to an abuse of power.  On the contrary, it was an example of democratic power being properly, lawfully and constitutionally exercised. If the people of Warwickshire did not like that decision they could have voted out the councillors three months later.”

He added:

“My overriding conclusion is that the claimants here are voicing their complaints in the wrong place.  Rather than raising them in a court room they should raise them in councillors’ surgeries and ultimately in the voting booth.   As I have said earlier, that is what local democracy is all about.”

The Warwickshire case also concerned statutory consultation on the Local Offer (social care, education and health) under the Children and Families Act 2014.  The Judge observed that not only did a vast number of people and bodies have to be consulted before a Local Authority publishes its Local Offer, but also a “huge amount of information”,  a  “very extensive range of information”, must be referenced.  Mostyn J observed:

“Although the prescriptions are extremely extensive it is important to understand that the requirement is no more than to publish information about what services are expected to be available.  Section 30 of the 2014 Act incorporates a publication obligation, no more, no less.”

The Judge rejected a challenge that the Local Offer consultation was unfair. It was not a consultation about whether particular provision should be made.  He said:

 “… it must be very clearly understood what the purpose of the consultation is.  It is about what appears in the Local Offer, which is a compendium of information.  I remind myself of the words of section 30.  The local authority has a duty to publish information about certain provision it expects to be available.”

The Judge also rejected a challenge that alleged that the IDS proposals, and the local LSCB’s thresholds document, were unlawful or contrary to the 2013 “Working Together to Safeguard Children” statutory  guidance.  He said, referring to Section 17 of the Children Act 1989:

 “It would not make sense for any child with any “mental disorder” to be entitled automatically to receive a section 17 assessment conducted by a social worker given the mutability of the term mental disorder.  I agree with Mr Goudie QC that it may, for example, be entirely inappropriate for a child with dyslexia or dyspraxia to receive a social care assessment under section 17.  In my judgment the guidance should not be read as insisting that every disabled child should initially be the subject of a full-blown social worker assessment.  Alternatively, if it does say that then local authorities and safeguarding boards would have good reason for departing therefrom.  The approach taken in the threshold document strikes me as eminently reasonable in terms of initial deployment of resources.”

The recent Supreme Court decision in Moseley has now for the first time been considered in the Court of Appeal.  A consultation challenge failed in R (Robson) v Salford City Council [2015] EWCA Civ 6.  The Court of Appeal reined Moseley in, from paragraph 22 of the Judgment of Richards LJ, with which Treacy LJ and Newey J agreed.  At paragraph 22, Richards LJ said:-

“The decision of the Supreme Court in R (Moseley) v Haringey London Borough Council [2014] UKSC 56, [2014] 1 WLR 3947, has featured large in the argument concerning the consultation issue. … In fact the decision in Moseleyis largely an endorsement at Supreme Court level of principles already established at the level of the Court of Appeal, but it provides an illustration of the application of those principles …”

 At paragraph 29 Richards LJ continued:-

“As to the application of the law to the facts in Moseley, the consultation in that case was found to be procedurally unfair because the consultation documentation gave a misleading impression in failing to mention other ways of absorbing the shortfall in funding which the proposed scheme was intended to meet.”

 Richards LJ concluded:-

“34. In order to determine whether consultees were misled or were not consulted about the actual proposal, it is also necessary to have regard to the wider picture. …

35. In Moseley the consultation material conveyed a positively misleading impression that other options were irrelevant. …In Moseley it was wrong to place reliance on consultees’ assumed       knowledge of other options for the same reason, that the message conveyed by the local authority was that other options were irrelevant. …”

“36. It may be helpful for me to indicate that if I had found that the consultation was unfair, I would have favoured limiting relief to the grant of a declaration, refusing the quashing order sought by the appellants (just as the Supreme Court in Moseley declined to grant a quashing order in the particular circumstances of that case). … In my judgment it would not be appropriate in these circumstances to require the Council to go back to square one and to conduct a fresh consultation exercise.”

In Noon v Matthews [2014] EWHC 4330 (Admin) the Divisional Court allowed an appeal by way of case stated of the Conservators of the River Cam about their ability to prosecute unlawful operators of punts on the River Cam. The Conservators were established in 1702 and have jurisdiction to make Byelaws over the River Cam. The River Manager of the Conservators, acting on instructions, brought prosecutions which were stayed by the District Judge as an unlawful delegation of power by the Conservators to their officers.

Beatson LJ considered the legislative scheme in the River Cam Navigation Act 1851 and the River Cam Conservancy Act 1922 and held both that it was inevitable the power of prosecution, in the circumstances of the Conservators, would be delegated to a senior officer and that it had, on the facts, been subject to appropriate oversight and control. The appeal was allowed and the case remitted to the Magistrates’ Court for the prosecutions to proceed.

The Judgment contains some interesting observations on delegation case law.

Beatson LJ (with whom Holroyde J agreed) said:-

“25.       There are no relevant decisions concerning the power of the Conservators to delegate their powers. Accordingly, guidance must be sought from the decisions of this and other courts in other contexts. The starting point is the principle that powers conferred by statute should be exercised by the person or authority on whom they are conferred, “even where [this] causes administrative inconvenience, except in cases where it may be reasonably inferred that the power was intended to be delegable”: Wade and Forsyth, Administrative Law, 11^th ed., 259, and see also de Smith’s Judicial Review 7^th ed, 5-148 ff.

26.        One can only assess how strict this principle is by examining the approach of the courts to the question whether statutory provisions impliedly authorise delegation. As in many areas, this is likely to vary according to the context and the nature of the power. There is a strong presumption against interpreting a grant of legislative power as empowering delegation. There is also a tendency to adopt a more restrictive approach to implied authority to delegate in the cases of the proceedings of courts and cases involving other “judicial” and “disciplinary” powers. A strict approach is also likely if the power is conferred on the holder of a public office because of the personal qualifications and experience that those who hold the office can be expected to have. Re Bell’s Application for Judicial Review [2000] NI 245, the decision relied on by the District Judge, is an example of a strict or restrictive approach. But where the exercise of the power in question is not final or conclusive, where the power is given to the head of an organisation which is itself hierarchically structured, and where the responsibilities of the person or body named in the statute are such that the court considers delegation is inevitable, a less strict approach is taken and authority to delegate is likely to be implied.”

Beatson LJ then considered Nelms v Roe [1970] 1 WLR 4, Provident Mutual Life Assurance Association v Derby City Council [1981] 1 WLR 173, R (Chief Constable of West Midlands Police) v Birmingham Justices [2002] EWHC 1087 (Admin) and especially DPP v Haw [2008] 1 WLR 379, and continued, at para 32, with respect to Bell’s case:-

“I consider that only limited assistance can be derived from that case. First, its context was very different to that of the present case. The Northern Ireland Health and Social Service Board was obliged under the relevant legislation to authorise the relocation of a pharmacy business if it was satisfied that it was a “minor relocation”, and had no power to authorise it if it was not a “minor relocation”. The Board delegated the power to decide whether to authorise the relocation of a pharmacy business to its Director of Pharmaceutical Services, who determined that Ms Bell’s application for authorisation was not a “minor relocation”. The delegation was to decide a question of the extent of the Board’s jurisdiction (see [2000] NI 245 at 258) which had an effect on Ms Bell’s ability to operate her pharmacy business lawfully. It was for that reason that Girvan J considered the matter delegated could not be characterised as a mere administrative matter.”

Beatson LJ continued:-

“33.       In the present case, the issue concerns a decision to bring a prosecution. While the decision to issue a summons is a judicial act, the decision to bring a prosecution is a matter for the prosecutor alone: … The decision has a practical effect but is subject to the control of the court, first, and generally fairly quickly, when it decides whether to issue a summons, and, if it does, in the conduct of the trial.

34.        Secondly, I note that Girvan J did not consider Nelms v Roe. In that case, although the failure to provide the information was a criminal offence, a far less strict approach was taken to the question of implied authority to delegate.

35.        Thirdly, and significantly, in the light of the decisions in Haw’scase and the Birmingham Justicescase, Girvan J’s formulation appears too wide. Although those cases involved important common law freedoms, indeed fundamental rights, this court took a different and less restrictive approach than that taken by Girvan J. Haw’scase involved freedom of expression and of assembly, freedoms which are regarded as important by the common law and are also fundamental rights protected by the European Convention of Human Rights. The Birmingham Justicescase involved a court order which, while a civil order, could have a significant effect on an individual’s freedom of movement.”

 With that summary of the authorities, Beatson LJ turned to the question of determining the extent of the implied power in the relevant legislation.  He said, at para 36:-           

“My starting point is that the Conservators are statutory officers at the apex of a hierarchical organisation consisting of other office-holders, referred to in the governing statutes and Byelaws. They are either elected members of the relevant local government areas or senior members of the University of Cambridge. On examining the Acts, while some of the functions referred to are specifically required to be carried out by named office-holders, in respect of other functions there is no such limitation, or the reference is only to the Conservators. …”

 “39.       In my judgment, a distinction must be made between the determination of policy on such matters and the operational execution of such policy. Notwithstanding the difficulties at the margin of locating the boundaries of these categories, I consider that the Conservators are not impliedly authorised to delegate broad policy on such matters. They can, in my judgment, however, delegate the implementation of such policies to officers who will have some discretion as to how, operationally, to execute the policy in question.

40.        Is there, however, a distinction between those powers and the power to prosecute because it is much easier to conclude that it is inevitable that works of construction and clearing were to be planned and undertaken by skilled workpeople rather than the Conservators, whereas the decision to prosecute is not something which it is inevitable that the Conservators must delegate, since they could make the decision themselves after taking legal advice? I do not consider that there is. The function of enforcing the many Byelaws issued by the Conservators and prosecuting those against whom there is evidence that they have breached them is undoubtedly an onerous and operational task. Decisions may need to be taken quickly. The Conservators meet quarterly … and there are obvious practical difficulties of a body comprised of individuals which represent other bodies which only meets quarterly conducting criminal prosecutions on a day-to-day basis. Accordingly, although the decision to prosecute is a serious one, some delegation to the most senior officer is, in my judgment, inevitable in the sense that word was used in Haw’s case. …”

“43.       I have concluded that the presumption of an implied power to delegate, which it is accepted applies in relation to certain of the Conservators’ functions, also applies to the institution of prosecutions. I consider that it is for the Conservators to set the general policy regarding prosecutions, but that, as far as individual prosecutions within such general policy are concerned, there is power in their senior officer, the River Manager, to make the operational decisions. In reaching this conclusion, I have taken account of the fact that the decision to institute a prosecution is not determinative of the rights and entitlements of those affected. The court has control in the sense of deciding whether to issue the summons and then in hearing the case. I have also taken account of the fact that to require the Conservators to act as a body in the case of each individual against whom a prosecution is being considered would not be practical since they conduct their business at quarterly meetings.