Predetermination: valid concern or convenient cover story?
Cock-up or conspiracy? A question that keeps popping into my head whenever I look at the long-standing and slipshod relationship between TDC and Manston. Today’s source of wonderment is the aborted motion on night flights at the 14th July TDC Council meeting.
The snippet of Labour press release reproduced below gives one side of the story. Political hot air to one side, it appears that the motion regarding night flights was scotched at the very last minute, rather than at any point in the preceding month or so. Incompetence on the part of officers for accepting an ill-formed or illegal motion? Or what passes for political finesse on the part of the majority party?
I have yet to see the full legal advice (do please send in your copy), but my team of researchers tell me that me that Bevan Brittan’s advice was that even debating the motion could be construed as predetermining any possible future application from Manston.
I’ve long been puzzled by this predetermination thing, so I hunted around and found a very helpful explanation on the Local Government Lawyer website:
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.
The courts have accepted that … the fair-minded and informed observer accepts that:
- 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.
- 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.
- 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.
- To suspect predetermination because all members of a single political group have voted for it is an unwarranted interference with the democratic process.
- 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.
My reading of this is that it would have been perfectly acceptable for TDC to debate what their policy on night flights should be (with or without a proposal on the table), regardless of individual election platforms or manifesto pledges. What do you think?
Press release from Thanet Labour:
3) THE LEGAL ADVICE:
The TDC Legal Monitoring Officer advised the Chairman that the motion could not be allowed for complex legal reasons and pointed to a letter of advice from Bevan Brittan LLP (dated 14th July – the very day of the meeting) that had been left on councillors seats just minutes before the start of the meeting.
4) THE OUTRAGE
An intense debate on the extremely late legal advice followed in which Labour councillors explained that the motion had been handed in person by Cllr Hart to the Legal Monitoring Officer more than five weeks before the meeting on the 7th June and that the Monitoring Officer had read it and accepted it as a valid motion. A month later the motion had also been accepted onto and clearly printed in the council agenda as item 8a.
During the debate it also became clear that on the evening before Thursday’s council meeting (13th July) Cllr Bayford, the Conservative Council Leader, had raised objections to the motion and that as a direct consequence further legal advice had been requested on the very day of the council meeting.
After the meeting Cllr Clive Hart said:
“TDC had my written motion to council for more than five weeks and the only thing I was aware of during the whole of that period was that it had been accepted onto and printed in the council agenda. The motion was submitted to support the councils own TDC Airport Working Party recommendations that had been ‘left off’ of the agenda of an Overview & Scrutiny Committee meeting in error and the actual wording of the motion simply confirmed the basis of the existing 106 agreement that the Conservative administration had failed to review for the past eight years”.