Regina v Waltham Forest London Borough Council, Ex parte Waltham Forest Ratepayers Action Group

Before Sir John Donaldson, Master of the Rolls, Lord Justice Stocker and Lord Justice Russell

[Judgment September 24]

The duty of an individual councillor was to make up his own mind on how to vote giving such weight as he thought appropriate to the views of other councillors and to the policy of the group of 'which he was a member. It was only if he abdicated his personal responsibility that questions could arise as to the .validity of his vote.

The Court of Appeal so held in dismissing an appeal by the Waltham Forest Ratepayers Action Group against the refusal of the Queen's Bench Divisional Court (The Times. July 31) to grant judicial review of the resolution of the London Borough of Waltham Forest on March 10, 1987 in making the general rate for 1987-88, with increases of up to 62 percent.

Mr James Wadsworth, QC and Mr Anthony De Freitas for the ratepayers action particular rate and that each group held private meetings at because they considered that The standing orders also determined by each member

for the ratepayers action group: Mr Eldred Tabachnik, QC and Mr Patrick Elias for the council.

The MASTER 0F THE ROLLS said that the council had resolved to levy a domestic rate of 302.5p in the £ and 321p for non-domestic. That represented increases of 62 per cent and 56.6 per cent respectively.

Not unnaturally many ratepayers objected to so steep an increase in their rates and the action group had sought judicial review of the resolution fixing the rates. The findings of the Divisional Court, who had examined and rejected all the action group's complaints, were accepted save one.

Six or seven councillors had voted for the resolution notwithstanding that in their view the proposed rates were unreasonably high. Had they abstained or voted against the resolution, it would not have been passed since the voting was 31 for and 26 against.

Mr Wadsworth had submitted, rightly, that no one other than a member of the rating authority could determine whether or not to make a

particular rate and that each member present at the meeting considering the resolution had a personal and individual duty to consider the issues involved and to reach his own decision.

Before the Divisional Court it had been contended that some of the councillors had voted for the resolution on instructions from a body known as the Local Government Group, which was composed of representatives of the Labour Party of the three parliamentary constituencies which made up the London Borough of Waltham Forest.

Had that allegation been made good, and it was not now maintained, the councillors concerned would quite plainly have been in breach of their statutory duty and the resolution would have been invalid, since it could not be' said to have been the decision of the rating authority.

The allegation maintained in the appeal was a variation of that complaint. As was common practice, the members of the council who were members of the Labour Party and formed the majority

group held private meetings at regular intervals at which they discussed forthcoming council business and determined what the policies of the group should be.

Such a meeting took place in advance of the rate-making meeting and the extent (if any) to which the new rate should be higher was the subject of considerable discussion in which differing views were expressed. In the end the group resolved to support the resolution which was put to and passed by the council.

That decision by the majority group was not, however, unanimous. Six or seven councillors voted against it, yet all voted for the resolution in council.

No one could complain if the councillors had re-examined the issues and changed their minds between the group meeting and the meeting of the council. Mr Wadsworth, however, submitted that there was no change of mind. The reason why they voted for the resolution was that they were subject to party discipline and to the political "whip" system. '

They voted as they did, not because they considered that the resolution should be passed, but because, in the light of the majority group's private vote, their discretion had been fettered and they had no option but to vote as they did.

If that could be made out on the facts, his Lordship would have had no hesitation in holding that the councillors had been in breach of their duty to make up their own minds on the issue of what was an appropriate rate and would have been minded to quash the resolution. However, that had not been made out on the facts.

The majority group had adopted the nationally approved "standing orders for Labour groups on local authorities", under which members were required to refrain from speaking or voting in opposition to the decisions of the Labour group unless it had been decided to leave the matter to a free vote.

There was a conscience clause but it appeared to have been directed primarily at issues involving religion or temperance.

The standing orders also made a distinction between the general run of council business and cases in which the council or its committees were acting in a "quasi-judicial capacity (eg licensing of theatres and cinemas, etc" when "each member shall form his or her own judgment according to the evidence".

That led Mr Wadsworth to argue that the rules did not permit a member to form his or her own judgment in relation to other matters, even one of such fundamental importance as the rate resolution. His Lordship did not so read the rules.

It was well settled that councillors could have general policies in relation to any matter, including the licensing of theatres and cinemas, and the distinction which was being made was between a situation in which the council had to determine a factual matrix to which a policy could well be applied from one in which no determination of" particular facts was necessary.

It was not possible to have a policy as to the existence of facts and they had to be

determined by each member on the evidence.

His Lordship did not find those rules in any way objectionable. What would have been objectionable would have been a provision that a member had forthwith to resign his membership of the council if, in the absence of a conscience situation, he intended to vote contrary to group policy. That would have fettered his discretion and make him a mere delegate of the majority group.

But that was not the position. Standing orders made provision for the withdrawal of the whip if a member acted in breach of them, but there was nothing to prevent his continuing to be an independent member of the council and to vote as he saw fit.

In practice in Waltham Forest, failure to toe the party line led in the first instance only to a reprimand, next to removal from chairmanships and only as a last resort to withdrawal of the whip.

To quash the council's decision upon the grounds that the majority group operated a whipping system based upon those standing orders and the existence of private policy making meetings would be casting doubt upon the legality of the procedures adopted by political groups of local councillors throughout (he country. It would also, by implication. be criticizing the system operating in Parliament itself

In an appropriate case his Lordship would have no hesitation in doing so, but he saw no possible reason for adopting such a course. So long as councillors were free to remain members despite the withdrawal of the whip and so long as they remembered that whatever degree of importance they attached to group unity, the ultimate decision was for them and them alone as individuals, there was 'no undermining of statutory' safeguards.

Looking at the evidence, the individual councillors had all made (heir own personal decisions.

Lord Justice Stocker and Lord Justice Russell delivered concurring judgments.

Solicitors: Richards Butler Mr P. J. North, Walthamstow.